Case: Schmidt v Won [1998] 3 VR 435
Outcome: applied
Counsel for Plantagenet submitted that the case of Sterling Pharmaceuticals was distinguishable because that case was concerned with two sets of proceedings one of which was in Australia and the other in New Zealand, and therefore beyond the scope of the cross-vesting scheme. Counsel for Plantagenet submitted that, in cases where the parties were amenable to the jurisdiction of the legislation comprising the national cross-vesting scheme, the scheme had ousted the common law principles on whether a court would stay its own proceedings on the basis of forum non conveniens. Counsel relied upon observations made by Ormiston JA in Schmidt v Won [1998] 3 VR 435 ('Schmidt') . 39 In Schmidt , Ormiston JA made the following observations at 453-454: 'Subject always to the power of the Court to stay frivolous, vexatious oppressive proceedings or any which amount to an abuse of process (the categories for which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s 5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, ie in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the Cross-Vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia.' 44 In this case the parties were amenable to the cross-vesting scheme, and so it was open to Lion Nathan to have brought an application to transfer the Federal Court proceedings under the Cross-Vesting Act rather than to apply for a stay. The transfer application has now been made by the amendment to the notice of motion. As I have already mentioned, Lion Nathan does not seek a stay of the proceedings on the basis of an abuse of process by Plantagenet, and so this application does not fall into the exceptional circumstances category referred to by Ormiston JA in Schmidt in the observations set out above. In my view, therefore, it is appropriate that I decline to exercise the Court's jurisdiction to stay the proceedings. It is appropriate that the question of the destiny of the Federal Court proceedings be considered by reference to Lion Nathan's transfer application now before the Court. 45 In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia. 49 Section 20 of the SEP Act does not appear in Pt 7 of the SEP Act, and therefore the reference to the word 'Court' in s 20 of the SEP Act is to be construed as a reference to a court of a State. It follows that the reference to 'court' in s 20 of the SEP Act is not a reference to the Federal Court, whose proceedings are not, in any event, served pursuant to the SEP Act. Further, in Schmidt , Ormiston JA at 454 observed that s 20(1) of the SEP Act is to be construed as referring to an inferior court of a State. 50 I, accordingly, decline to stay the Federal Court proceedings under s 20 of the SEP Act as there is no jurisdiction to do so.