Unterlechner v Interface It Operations Pty Ltd - [2019] VSC 109

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2018 01826

BETWEEN:

KARL UNTERLECHNER	Plaintiff
v
INTERFACE IT OPERATIONS PTY LTD (ACN 146 555 017)	First Defendant
INTEFACEIT (US) INC	Second Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2019
DATE OF RULING:	21 February 2019 (given ex tempore, revised)
CASE MAY BE CITED AS:	Unterlechner v Interface IT Operations Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 109

---

PRACTICE AND PROCEDURE – Application for permanent stay of proceedings under r 23 of the Supreme Court (General Civil Rules) 2015 – Whether Supreme Court of Victoria inappropriate forum for proceeding brought by plaintiff – Voth v Manildra Flour Mills Pty Ltd [2005] NSWSC 1098 – Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 – Where contract of employment purports to be governed and construed by laws of Australia and a foreign jurisdiction – Supreme Court of Victoria not a clearly inappropriate forum.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C R Northrop	Scammell Black Mileo Pty Ltd
For the First Defendant	Mr L Howard	Sparke Helmore

HER HONOUR:

This ruling concerns an application by the first defendant for permanent stay of a proceeding on the grounds that this Court is not the appropriate forum. The plaintiff is a former employee of two companies; one is Australian and one is an overseas company. Both are wholly owned by another company and part of the Geo Group. In this proceeding the plaintiff makes claims against both his former employer companies following the termination of his employment.

The first defendant made the application by way of summons filed on 20 December 2018. The application is made under r 23 of the Supreme Court (General Civil Rules) 2015 (‘the Rules’), which is the appropriate rule. It is for a permanent stay of proceeding on the ground that this Court is not the appropriate forum. Alternatively, the application was for a conditional stay: that a permanent stay be conditional upon the first defendant allowing the plaintiff to pursue a statutory claim for long service leave in Australia. I accept there are legal principles that would permit that if appropriate. See, for instance: McGregor v Potts.[1] However, for the following reasons I must reject this application for a permanent stay of proceedings.
[1][2005] NSWSC 1098, [43].

Applicable Principles

The principles are not in dispute between the parties. The High Court enunciated the principles in Voth v Manildra Flour Mills Pty Ltd.[2] It applied the principles outlined by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay:[3]

… [i]t is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. 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.

Continue reading Unterlechner v Interface It Operations Pty Ltd

Details

AGLC: Unterlechner v Interface It Operations Pty Ltd [2019] VSC 109
Case: [2019] VSC 109
Decision Date: 21 February 2019 (given ex tempore, revised)

CaseChat Overview and Summary

Unterlechner, the plaintiff, sought a permanent stay of proceedings against Interface IT Operations Pty Ltd, the defendant, on the grounds that the Supreme Court of Victoria was an inappropriate forum for the proceeding. The dispute arose from an employment contract, which purportedly governed and construed by the laws of Australia and a foreign jurisdiction. The case was heard and determined in the Supreme Court of Victoria.

The central legal issue in this case was whether the Supreme Court of Victoria was an inappropriate forum for the proceeding, considering that the employment contract specified the governing and construal laws of both Australia and a foreign jurisdiction. The plaintiff relied on precedents such as Voth v Manildra Flour Mills Pty Ltd and Oceanic Sun Line Special Shipping Company Inc v Fay to argue that the court should grant a permanent stay of proceedings. The defendant, however, contended that the Supreme Court of Victoria was not a clearly inappropriate forum for the proceeding.

The court considered the precedents cited by the plaintiff and concluded that the Supreme Court of Victoria was not a clearly inappropriate forum for the proceeding. The court found that the employment contract's reference to the governing and construal laws of both Australia and a foreign jurisdiction did not automatically render the Supreme Court of Victoria an inappropriate forum. Consequently, the court dismissed the plaintiff's application for a permanent stay of proceedings.

No further orders were made by the court in this case. The decision stands as the Supreme Court of Victoria is not deemed a clearly inappropriate forum for the proceeding, and the case will continue in the Victorian court system.

Orders