BOC Limited v Ambulance Victoria [2016] NSWSC 1166

BOC Limited v Ambulance Victoria [2016] NSWSC 1166

Although the application was closely balanced and some factors were neutral, the non-neutral connecting factors, particularly the Victorian choice of law clause, the non-exclusive Victorian jurisdiction clause, the likely location in Victoria of most contentious factual witnesses, and the apparent Victorian place of the wrong, favoured the Supreme Court of Victoria as the natural forum. Once that conclusion was reached, s 5(2) required transfer of the proceedings to that Court, subject to a condition concerning entry into the Victorian equivalent of the Commercial List.

Jurisdiction
Australia
Judgment Date
19 August 2016
Procedural Posture
Commercial List Proceeding Concerning Return of Medical Oxygen Cylinders or Damages; Defendant's Cross Vesting Application / Interlocutory Application to Transfer Proceedings to the Supreme Court of Victoria
Outcome
Proceedings cross-vested to the Supreme Court of Victoria; defendant awarded costs of the notice of motion.
Legal Topics
['transfer of Proceedings' 'interests of Justice' 'natural Forum' 'connecting Factors' 'costs of Interlocutory Application']
['civil Procedure' 'cross Vesting' 'commercial Litigation'] ['transfer of Proceedings' 'interests of Justice' 'natural Forum' 'connecting Factors' 'costs of Interlocutory Application']

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Procedural Posture

Commercial List Proceeding Concerning Return of Medical Oxygen Cylinders or Damages; Defendant's Cross Vesting Application / Interlocutory Application to Transfer Proceedings to the Supreme Court of Victoria

Legal Issues

  1. 1 ['Whether the proceedings should be transferred to the Supreme Court of Victoria under s 5(2)(b)(ii) or (iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).' "Whether the Supreme Court of Victoria was the more appropriate or natural forum having regard to connecting factors including choice of law, jurisdiction clause, witnesses, place of wrong, parties' businesses, documents, and case management." "Whether costs of the defendant's notice of motion should follow the event or be costs in the cause."]

Ratio Decidendi

Although the application was closely balanced and some factors were neutral, the non-neutral connecting factors, particularly the Victorian choice of law clause, the non-exclusive Victorian jurisdiction clause, the likely location in Victoria of most contentious factual witnesses, and the apparent Victorian place of the wrong, favoured the Supreme Court of Victoria as the natural forum. Once that conclusion was reached, s 5(2) required transfer of the proceedings to that Court, subject to a condition concerning entry into the Victorian equivalent of the Commercial List.

Court Disposition

Proceedings cross-vested to the Supreme Court of Victoria; defendant awarded costs of the notice of motion.

Orders

  • ["The proceedings are transferred to the Supreme Court of Victoria pursuant to the defendant's Notice of Motion filed on 19 February 2016." 'The transfer is on condition that the defendant apply expeditiously, and do all in its power, to have the proceedings entered into the equivalent in the Supreme Court of...