Z487 Limited v Skelton

SUPREME COURT OF QUEENSLAND

CITATION:

Z487 Limited v Skelton & others [2014] QSC 309

PARTIES:

Z487 LIMITED

(plaintiff)

AND

DONALD ALFRED SKELTON

(first defendant)

AND

ANNARUNGA PTY LTD

(second defendant)

FILE NO/S:

BS 409 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29-30 September, 1 October 2014

JUDGE:

Atkinson J

ORDER:

1. The Application is dismissed.

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF LOCAL PROCEEDINGS – GENERALLY – where the plaintiff sought a declaration that a license agreement for the marketing of New Zealand kiwifruit cultivars was not validly terminated – where the first defendant filed an application pursuant to section 17 of the Trans-Tasman Proceedings Act  2010 (Cth) and rule 16 of the Uniform Civil Procedure Rules 1999 (Qld) seeking a declaration that the claim and statement of claim had not been properly started for want of jurisdiction; an order setting aside the claim and statement of claim; and a stay of the proceeding on the ground that a New Zealand court is the more appropriate forum to determine the matters in issue – where the license agreement contained an exclusive choice of court agreement designating an Australian court as the court to determine the matters in issue – whether the exclusive choice of court agreement is null and void under Australian law (including the rules of private international law)

Trans-Tasman Proceedings Act 2010 (Cth), s 3, s 17, s 19, s 20, s 21

Eroc Pty Ltd v Amalg Resources NL [2003] QSC 074, cited
Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54, cited
Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5, cited

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited

COUNSEL:

J B Sweeney with C M Tam for the plaintiff

C Elliott QC for the first defendant

SOLICITORS:

Doyle Wilson Solicitors for the plaintiff

Quinn & Scattini Lawyers as town agents for Norris Ward McKinnon for the first defendant

1. On 28 February 2014, Donald Skelton filed an application pursuant to section 17 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) and rule 16 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) seeking a declaration that the claim and statement of claim in this proceeding had not been properly started for want of jurisdiction; an order setting aside the claim and statement of claim; and a stay of the proceeding on the ground that a New Zealand court is the more appropriate forum to determine the matters in issue.

1. In order to determine whether or not this application should succeed it is necessary to traverse some of the history of the proceeding, the questions in dispute, and the directions made by the judge before whom the application was first heard.

History

1. This proceeding concerns a dispute over the plaintiff’s licence to produce and sell specific cultivars of kiwifruit.

1. The applicant/first defendant, Mr Skelton,…