If you are sued in another State or Territory in Australia it is possible to apply to have the proceeding heard in a more convenient jurisdiction to you.

In a recent hearing before the District Court of NSW, Rankin Business Lawyers was successful in having proceedings filed against its Victorian client stayed (and in effect dismissed) pursuant to section 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA).  Our manufacturing client was based in Victoria yet had been sued in NSW where the retailer was located.  The District Court of NSW held that despite the possible use of audio-visual (AVL) technology, a Court of Victoria (either Supreme Court or County Court) was the more “appropriate court” to determine the matters in issue between the parties.

The law

In deciding whether that court of another State is the appropriate court for the proceeding the following matters are considered under s 20(4) SEPA:

  1. the places of residence of the parties and of the witnesses likely to be called in the proceeding;
  2. the place where the subject matter of the proceeding is situated;
  3. the financial circumstances of the parties;
  4. any agreement between the parties about the Court or place in which the proceeding should be instituted;
  5. the law that would be most appropriate to apply in the proceeding; and
  6. whether a related or similar proceeding has been commenced against the person served or another person.

Factors relating to whether the substantive dispute may wholly or in part be conducted using AVL means are not to be used to in support of maintaining the proceeding in the jurisdiction in which the proceeding was issued.   It may however neutralise any prejudice or inconvenience to the plaintiff in the event the proceedings are stayed.[3] (Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104).

In our case, the factors which the Court considered are those set out at sub-sections (a), (b) and (e).

(a) The places of residence of the parties and witnesses

It was clear from the evidence filed in the stay application that there was a greater number of potential witnesses residing in Victoria (12) than there was in New South Wales (8).

(b) The place where the subject matter of the proceeding is situated

The subject matter of the proceeding was predominantly situated in Melbourne, it being the location of the key meeting between the plaintiff, defendant and third party witness in relation to the supply of the goods;  the location of all of the representations, breaches and other conduct of the defendant alleged by the plaintiff; the location where the allegedly defective goods were produced by the defendant; the location where the allegedly defective goods were supplied to the plaintiff; the location of the manufacturing tool and other equipment used to produce the goods.  His Honour accepted that the “centre of gravity” of the dispute was clearly in Victoria.[4]

(e) The law that would be most appropriate to apply

All of the alleged conduct of the defendant which was the subject of the claims by the plaintiff was conduct which could only have occurred in Victoria, being the locations of the alleged breaches of contract, breaches of duty, misleading or deceptive conduct, false representations and unconscionable conduct.  Accordingly, the laws that ought to be applied to the determination of the claims were held to be the laws of Victoria, not New South Wales.

On the above basis, the Court granted the stay application.  The defendant must now file a new proceeding in Victoria should it wish to proceed with the allegations.

We would be happy to assist you in a SEPA application in the unfortunate, albeit unlikely, event that you could get sued interstate.

Eliza Jane Saunders, Lawyer

 

[3] Joshan at [58].

[4] See Joshan at [115].