Union v Whatmore - [2005] VSC 381

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6979 of 2004

HELIX FIDEL UNION	Plaintiff
v
BENJAMIN WHATMORE AND ANOR	Defendant

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JUDGE:	DODDS-STREETON J.
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2005
DATE OF JUDGMENT:	2 May 2005
CASE MAY BE CITED AS:	Union v Whatmore and anor
MEDIUM NEUTRAL CITATION:	[2005] VSC 381

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Practice and Procedure – Application to transfer proceeding to Supreme Court of New South Wales – Jurisdiction of Courts (Cross-Vesting) Act s5(2) - whether in the “interests of justice” that the proceeding be heard and determined by that Court – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.R. Kirby	Brand Partners
For the Defendant	Mr G.A. Hubble	Anderson Rice

HER HONOUR:

This is an application by summons dated 19 April 2005 by the first defendant, Benjamin Whatmore, seeking an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act. The application is supported by the affidavit of Benjamin Whatmore sworn 18 April 2005 and by the affidavit of John Lancefield sworn 2 May 2005. There is an affidavit in opposition sworn by Joel Ruffles on 29 April 2005.

The proceeding was commenced by the plaintiff, Mr Helix Fidel Union, by writ dated 12 July 2004. By the amended statement of claim dated 22 March 2005, the plaintiff claims from the first defendant, Mr Whatmore, and the second defendant, Mr Nathan Dale, the sum of $125,515 by way of damages, together with interest and compensation for GST.

The amended statement of claim alleges an agreement made in February or March 2003, whereby the plaintiff agreed to sell the defendants a second-hand audio console and attachments for $250,600. The agreement was alleged to be partly oral, partly written and partly to be implied. By the terms alleged the defendants were to pay a non-refundable deposit and a part-payment. It is pleaded that the terms of the agreement included that the transactions were deemed to have taken place in Victoria and were subject to its laws, that the defendants would pay the balance of the purchase price on or before 7 March 2003 and that the plaintiff would supply the console by air freight from Tokyo’s Narita Airport.

The defendants paid $20,000 on 18 February 2003 and gave the plaintiff a cheque for $30,000 on 4 March 2003 which, it is alleged, was dishonoured. It is alleged that the plaintiff nevertheless made the arrangements for the supply of the console, thus incurring obligations to a wholesaler, and arranged for the delivery to Narita Airport; and that the defendants made no further payments. The plaintiff claims the difference between the price the plaintiff had to pay at wholesale rates and the value of the contract, together with the sum of approximately $17,000, which is due to the wholesaler.

The first defendant, by an amended defence and counter claim dated 18 March 2005, denies that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSC 381
Decision Date: 2 May 2005

CaseChat Overview and Summary

The applicant, Union, sought to transfer a proceeding from the Federal Circuit Court to the Supreme Court of New South Wales under section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act. The respondent, Whatmore, opposed the application. The dispute centred on whether it was in the interests of justice for the Supreme Court to hear and determine the matter. The Federal Circuit Court was asked to decide on the application under the statutory provision.

The primary legal issue was whether the criteria set out in section 5(2) of the Act were satisfied, particularly whether the transfer was in the interests of justice. The court had to consider factors such as the complexity of the case, the public interest, and the convenience of the parties. The applicant argued that the proceeding involved significant public interest and required a higher level of expertise, while the respondent contended that the matter could be adequately dealt with in the Federal Circuit Court.

The court found that while the proceeding did involve matters of public interest and complexity, these factors alone did not meet the threshold for a transfer under section 5(2). The court held that the interests of justice did not require the proceeding to be heard and determined by the Supreme Court. The application was dismissed, and the matter remained in the Federal Circuit Court. The decision underscored the high threshold required for a transfer under the Act and the importance of considering all relevant factors in determining whether such a transfer is warranted.

Orders