FEDERAL COURT OF AUSTRALIA

Gleeson v Bank of Queensland [2017] FCA 1302

ORDERS

THE COURT ORDERS THAT:

1.    The whole of these proceedings, NSD14 of 2017, be transferred to the Supreme Court of Queensland pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

2.    The applicants pay the costs of and incidental to the respondent’s transfer application.

3.    Any outstanding costs of the balance of the proceedings in this Court be part of the overall costs determination at the conclusion of the proceedings in the Supreme Court of Queensland.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an interlocutory application made by the respondent, the Bank of Queensland Limited (the Bank), to transfer these proceedings to the Supreme Court of Queensland pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act) and/or s 12GK of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). The decision is able to be made by the application of s 5(4)(b)(iii) of the Cross-vesting Act, which for present purposes produces the same result, in parallel, as the application of s 12GK of the ASIC Act. Any differences between the provisions in language or emphasis are immaterial, at least in the circumstances of this case.

2    The first and second applicants, Martin and Judith Gleeson, are husband and wife, who are also directors of the corporate third and fourth applicants, Martin Gleeson Pty Ltd and Kieran Pty Ltd as trustee for the Gleeson Trust, a family trust. The third and fourth applicants were both incorporated in New South Wales.

3    According to a part of the pleadings for the applicants that were admitted by the Bank, the corporate applicants formed part of a group of companies operating under the name “Gleeson Homes”, which carried on a business as a builder in New South Wales. The applicants sought and obtained funds from the Bank to develop townhouses in Queensland – seven townhouses in one location and later six more townhouses on an adjacent block of land. The conditions upon which the loans were made were not met. The Bank sought repayment of the money advanced, which triggered the present proceedings to prevent such enforcement by attacking the validity of the agreements, direct and collateral, by which those moneys were paid.

4    By an amended originating application filed on 7 April 2017 and an amended statement of claim filed on 3 April 2017, the applicants seek:

(1)    orders under s 12GM of the ASIC Act that a mortgage, three facility agreements and three guarantees be set aside or varied;

(2)    an order under s 7 of the Contracts Review Act 1980 (NSW) that the same seven contracts be set aside or varied;

(3)    an order that the Bank take all steps necessary to cause the mortgage to be removed from the folio of property to which it relates;

(4)    an order for general damages at common law for breach of contract and related or other duties pleaded in the statement of claim;

(5)    further or in the alternative, damages to restore the applicants to the financial position they were in prior to the alleged wrongdoing of the Bank under s 12GF of the ASIC Act and/or s 236 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth),

plus interest and costs.

5    In bringing this transfer application, the Bank has foreshadowed and undertaken, if successful, to file a statement of claim in the Supreme Court of Queensland or, alternatively, in the Queensland registry of this Court, in the form of draft pleadings (Bank’s proposed SOC). The draft statement of claim was admitted into evidence at the hearing of the transfer application (albeit over a misplaced objection by the applicants as to the relevance of the document, which was plainly relevant). The Bank’s proposed SOC, if filed, would seek from the applicants amounts in excess of $2 million as a claimed debt, interest and the possession of property, that being one of the Queensland properties referred to in the proceedings in this Court and two other Queensland properties which are not the subject of the proceedings in this Court. It should be noted that the Bank’s proposed SOC is in the conventionally short form applicable to possession proceedings and is less than three pages.

6    It appears on the evidence before the Court that in the period between 2011 and 2013, the Bank entered into various agreements with the applicants by way of loan/facility agreements, mortgages and guarantees pursuant to which the Bank agreed to advance various sums of money to the third applicant, Martin Gleeson Pty Ltd, securing those advances by, inter alia, mortgages over several properties and guarantees given by the other applicants.

7    Although some of the details of the competing arguments between the parties require further elaboration, the Bank’s core contentions were that:

(1)    the existing proceedings and the proposed proceedings had a significant overlap, although there are significant areas that do not overlap as well;

(2)    it was in the interests of justice that the Queensland Supreme Court determine the whole of the controversy between the parties in circumstances in which it was argued that this Court, at least in New South Wales, lacks jurisdiction to deal with all the issues; and

(3)    the Queensland Supreme Court is, in any event, a more appropriate court to determine the whole of the controversy between the parties.

8    The core case for the applicants in resisting the transfer application was twofold and interrelated. First, it was argued that the applicants had a number of significant personal reasons for needing to maintain the proceedings in this Court in New South Wales. This was based on the undisputed facts that:

(1)    Mr and Mrs Gleeson both live in Orange, New South Wales and are involved in an agricultural business at that location;

(2)    Mr Gleeson is in poor health and will have difficulty travelling to Queensland by car, which is the only way that he can afford to attend court there;

(3)    the Gleesons’ son has a serious medical condition that would make it hard for him to travel to be a witness in Brisbane and to secure the medical attention he needs there; and

(4)    the applicants’ solicitors are in Sydney without any interstate office.

9    Secondly, the applicants contend that the appropriate way in which to deal with the possibility of the Bank wishing to bring possession proceedings is:

(1)    first, to have this Court in New South Wales hear and determine their existing case, albeit that further amendments to their amended statement of claim have been foreshadowed; and

(2)    secondly, and only if the applicants do not succeed in these proceedings, it would be open to and appropriate for the Bank to then commence its possession proceedings, presumably in the Queensland Supreme Court.

The relevant legislation

10    The following legislation is of sufficient relevance to the transfer application to warrant either reproduction in these reasons, or an outline as to their effect.

11    Section 5(4) of the Cross-vesting Act provides:

[5    Transfer of proceedings]

(4)    Where:

(a)    a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and

(b)    it appears to the first court that:

(i)    the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii)    having regard to:

(A)    whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(B)    whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and

(C)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(D)    the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii)    it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.

12    Section 12GK(1) to (3) of the ASIC Act provides:

12GK    Transfer of matters

(1)    If:

(a)    a civil proceeding instituted by a person is pending in the Federal Court; and

(b)    a matter for determination in the proceeding arose under:

(i)    this Division; or

(ii)    Part 3 in its application in relation to an investigation of a contravention of this Division;

the Federal Court may, subject to subsection (2), upon the application of a party or of the Federal Court’s own motion, transfer the matter to a court of a State or Territory and may also transfer to that court any other matter for determination in the proceeding.

(2)    The Federal Court must not transfer a matter to another court under subsection (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that:

(a)    the matter arises out of or is related to a proceeding that is pending in the other court; or

(b)    it is otherwise in the interests of justice that the matter be determined by the other court.

(3)    If the Federal Court transfers a matter to another court under subsection (1):

(a)    further proceedings in the matter must be as directed by the other court; and

(b)    the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court.

…

13    Sections 79(1) to (3) and 80 of the Judiciary Act 1903 (Cth) provide:

79    State or Territory laws to govern where applicable

(1)    The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

(2)    A provision of this Act does not prevent a law of a State or Territory covered by subsection (3) from binding a court under this section in connection with a suit relating to the recovery of an amount paid in connection with a tax that a law of a State or Territory invalidly purported to impose.

(3)    This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following:

(a)    limiting the period for bringing the suit to recover the amount;

(b)    requiring prior notice to be given to the person against whom the suit is brought;

(c)    barring the suit on the grounds that the person bringing the suit has charged someone else for the amount.

…

80    State or Territory laws to govern where applicable

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

14    Several legislative provisions are relied on by the Bank as relevant to the proposed SOC. These include:

(1)    Section 78 of the Land Titles Act 1994 (Qld), which provides::

78    Powers of mortgagee

(1)    A registered mortgagee of a lot has the powers and liabilities of a mortgagee under the Property Law Act 1974, part 7.

(2)    Without limiting subsection (1), but subject to the terms of the mortgage, if the mortgagor defaults under a registered mortgage, the mortgagee may—

(a)    take possession of the mortgaged lot in a way that does not contravene the Criminal Code, section 70; or

(b)    enter into possession of the mortgaged lot by receiving rents and profits; or

(c)    by a proceeding in a court of competent jurisdiction—

(i)    obtain possession of the mortgaged lot; or

(ii)    foreclose the right of the mortgagor to redeem the mortgaged lot; or

(iii)    obtain an order of the court for the sale of the mortgaged lot.

(3)    The powers in this section are in addition to other powers exercisable by the mortgagee.

(2)    Sections 83 to 89 of the Property Law Act 1974 (Qld), which relevantly set out the powers and liabilities of a mortgagee, including the power to sell, or to concur with any other person in selling, the mortgaged property or any part of the mortgaged property.

(3)    Sections 90 and 91 of the Civil Proceedings Act 2011 (Qld), which relevantly provide for enforcement of an order for payment into court by way of an order authorising an enforcement officer to enter and deliver possession of land.

(4)    Rules 817 to 827, 891 to 896, 906 to 915 of the Uniform Civil Procedure Rules 1999 (Qld), which are relevant to enforcement warrants generally, enforcement of non-money orders and enforcement warrants for possession of land in Queensland.

Authorities

Cross-vesting cases

15    In BHP Billiton Limited v Shultz [2004] HCA 61; 221 CLR 400, the High Court considered the operation of s 5(2)(b)(iii) and s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA). While different provisions were in play in that case, in common with the present application the Court was concerned with the meaning of the statutory test for making a transfer order based upon “the interests of justice”. The plurality considered the scheme of the Cross-vesting Act at [7] to [21]. In particular, their Honours made the following observations that are pertinent to the present application:

14    In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

15    The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff’s lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff’s early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.

16    On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party.

16    The plurality in Shultz further observed (omitting footnotes):

27    As we have already indicated, we do not suggest that the interests of justice properly to be taken into account will be unrelated to the interests of one party or another. We do not doubt that, in the case of Zunic, it was entirely appropriate for Sully J to take into account the plaintiff’s short life expectancy, and the prospect of expedition in the Tribunal. There are cases in which justice may dictate that an interest of one party be given weight. Although in a different context, Lord Goff’s discussion in Spiliada of the “legitimate personal or juridical advantage” shows the kinds of consideration that might sometimes be relevant to a judgment as to the appropriateness of a forum. Yet, in the present case, the combination of the importance that was attached to the first respondent’s choice of forum, and the treatment of s 11A as a factor relevant to the interests of justice, involved error in the application of s 5 of the Cross-vesting Act.

17    Gummow J in Shultz, observed (omitting footnotes):

63    This appeal concerns in particular the application of sub-para (iii) of s 5(2)(b). Unlike sub-paras (i) and (ii), there is no requirement of a pending proceeding in the transferee court or the presence of cross- vested jurisdiction in the transferor court. Sub-paragraph (iii) is more broadly expressed. However, as with the other sub-paragraphs, the issue on an appeal to this Court is not accurately identified as whether the primary judge erred in the exercise of a discretion. If it “appears” to the Supreme Court to be “otherwise in the interests of justice” that there be a transfer, then the Supreme Court “shall transfer the relevant proceeding”. Again, no question of discretion arises. The word “shall” imposes a duty which must be performed. Rather, the issue for this Court is whether his Honour erred in the content he gave in this case to the phrase “otherwise in the interests of justice”.

…

69    It is convenient at this stage to consider further those considerations dealing with “regular invocation” by Mr Schultz of the jurisdiction of the Tribunal and the absence of forum shopping in any offensive form. The primary judge appears to have treated these matters as giving to Mr Schultz “legitimate interests” in the “unusual advantages” conferred on him as a plaintiff in the Tribunal, which it was for BHP to satisfy the primary judge should be displaced and a transfer order made (148). However, that was not an approach to BHP’s application which the Cross-vesting Act supported. That statute does not ask, as would be consistent with the general law principles pronounced in Voth and applied in Goliath, whether the Tribunal is “a clearly inappropriate forum”. The stance taken by the statute is quite different.

70    The preamble to the Cross-vesting Act states in para (c) that it is desirable “if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court”. In the Second Reading Speech on the Bill for what became the Cross-vesting Act, the Attorney-General for New South Wales said:

“Under the scheme, if proceedings are commenced in an inappropriate court, or if related proceedings are begun in separate courts, the courts will have power to transfer proceedings to the most appropriate court, having regard to the nature of the dispute, the laws to be applied and the interests of justice.”

The Attorney-General went on (150) to describe cl 5 as operating “to ensure that proceedings are always dealt with by the most appropriate court”.

…

77    The phrase “otherwise in the interests of justice” in sub-para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff. That being so, error is disclosed in the treatment by the Supreme Court of BHP’s application. The consequence is that the appeal to this Court should be allowed, unless this Court supports the primary judge’s order on further or alternative grounds to those relied upon by his Honour. No such support appears.

18    Kirby J in Shultz observed (omitting footnotes):

167    The postulate of equal justice: Against the background of the foregoing analysis, the error of Sully J in exercising the powers of the Supreme Court under the Cross-vesting Act can be seen in sharp relief. It is, with respect, the same error as informed his Honour’s earlier decision in Zunic. It appears most clearly in his statement that the claimant’s “own choice of forum ought not lightly to be overridden”.

168    I consider that this element unduly weighed the scales against the appellant’s application before the Supreme Court. By hypothesis, where an application for transfer is made under a cross-vesting Act, one party has validly invoked the jurisdiction of a particular State court. In the disposition of the application, that fact must therefore be neutral. It cannot predominate in the evaluation of the “connecting factors” to be given weight on both sides of the ledger in ascertaining which of the competing fora “is more appropriate” having regard to “the interests of justice”. That point remains to be decided.

169    The judge’s error in this case: When these considerations inherent in the criteria stated in the NSW Cross-vesting Act are so understood, the assignment by Sully J of the weight that he gave to the regular invocation of the jurisdiction of the Tribunal by the first respondent constituted an error in a consideration that informed his exercise of the Supreme Court’s powers. It is unnecessary to decide whether there were other errors, for this one is sufficient to vitiate the resulting decision. Normally, the “interests of justice” of all parties within Australia will require the transfer of proceedings to be determined by the Supreme Court of another State or of a Territory where that Court, rather than the court of the forum selected by the plaintiff, is the “natural forum” being that “with which the action has the most real and substantial connection”. Usually that will be the place of the wrong, or of the contract or of the operation of the statutes sued upon and particularly where that is also the place of the residence of the parties.

19    Callinan J in Shultz observed (omitting footnotes):

222    It is important to notice that s 5(2)(b)(iii) of the Cross-vesting Act uses mandatory language, “… the first court shall transfer”. A judge hearing an application for cross-vesting does not therefore have an unfettered discretion. Such a judge must apply his or her mind to the criteria stated in the Act, including the interests of justice, justice it may be observed, to all parties, and, if they are satisfied, must cross-vest the case.

…

258    His Honour at first instance emphasised as a matter favouring the Tribunal as the forum, the regular invocation of its jurisdiction by the first respondent. He coupled that with the view of the first respondent’s lawyers that their client could get legitimate procedural evidentiary and cost advantage from litigating in the Tribunal. The party beginning proceedings will always be the party who selects the jurisdiction in which they are to be heard. It is to beg the question to say that because a plaintiff has chosen his or her forum, a defendant cannot ask, or should suffer a disadvantage in asking that it be changed to a more appropriate one. Furthermore, as I pointed out in Agar v Hyde one person’s legitimate advantage is another person’s disadvantage. There should be no presumption in litigation in favour of any party. Courts are required to do equal justice. It is wrong to say that proceedings should be conducted in the, or indeed any Tribunal because a plaintiff, or for that matter a defendant, is likely to have a better chance of winning or more easily winning there. It seems that here, and the trial judge at first instance accepted, that the first respondent’s professional advisers who had had considerable experience with the Tribunal, thought their client had better prospects as to liability and damages in the Tribunal than elsewhere. To give effect to that view if it be correct would not be to do equal justice in the cross- vesting application. Even if it be the case that the legislature of New South Wales were to think a claimant’s advantage over a defendant a legitimate end, that could provide no basis for its imposition on other States and those entitled to litigate in the courts of them.

20    In Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36, Brereton J considered an application for a transfer of proceedings from the Supreme Court of New South Wales to the Family Court of Australia. Relevantly, his Honour held:

69    That leaves to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so — for which purpose it is both necessary and sufficient that the transferee court be the “more appropriate” forum: BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 [14], 434 [63]. In identifying the “more appropriate forum”, relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the “connecting factors” described by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478 – including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction: BHP v Schultz (at 422 [18]). Consideration of relevant connecting factors may identify a “natural forum”: BHP v Schultz (at 423 [19]); cf British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44]. As BHP v Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the “interests of justice” are to be judged by more objective factors, such as facilitate identification of the “natural forum”, in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be: cf British American Tobacco v Gordon (at [47]).

70    I reject the submission, advanced on behalf of Bobby, that the applicant for a transfer bears some onus or has to show some good reason for disturbing the plaintiff’s initial choice of venue, or that the plaintiff’s choice of court is to be given weight; despite earlier suggestions to that effect (Global Technology Australasia Ltd v Bank of Queensland [2001] VSC 230; Bourke v State Bank of New South Wales (1988) 22 FCR 378; Kenda v Johnson (1992) 107 FLR 19; Re Chapman and Jansen (1990) 13 Fam LR 853; Bankinvest AG v Seabrook (1988) 14 NSWLR 711), it is now established that an applicant for a transfer bears no burden of persuasion or onus of proof (BHP v Schultz (at 437 [71]); Bankinvest AG v Seabrook (at 727), and no particular significance attends the plaintiff’s original choice of forum: BHP v Schultz (at 425 [26]- [27], 439 [77]); British American Tobacco v Gordon (at [43]). It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.

71    The present is not a case in which geographical or local connection or the availability and convenience of witnesses is of significance; whether in the Supreme Court or the Family Court, the proceedings would likely be heard in Sydney, or possibly in Wollongong; neither court offers any advantage over the other in this respect.

…

73    Nor is the professed inexpertise of Mick and Angelina’s lawyers in the Family Court a matter of moment, particularly since the appropriateness of the Family Court as the forum had been raised from the outset of their intervention, and that they will be required to respond to Betty’s amended application in the matrimonial proceedings in any event. A party cannot dictate the appropriateness of a forum by selection of particular lawyers.

…

76    … The fact that one court can resolve the whole justiciable controversy and the other cannot will usually indicate that the former is the more appropriate court, although there may be exceptional cases – corresponding with those in which the Federal Court would as a matter of discretion decline to exercise accrued jurisdiction — in which that might not be so.

…

85    In my opinion, justice can best be done by one court resolving the whole justiciable controversy, in order to avoid both duplication and inconsistency. In the present context, the Family Court is the more appropriate court for that purpose, because the larger controversy, of which the smaller forms part, is a matter properly and primarily in the jurisdiction of the Family Court. It follows that the proceedings must be transferred to the Family Court. If as a matter of principle the effect of this decision is that third parties who, in the context of a marriage breakdown, assert rights against matrimonial property, should join in existing matrimonial proceedings rather than commence separate litigation, then the beneficial result is that all issues are litigated only once and only in one court, the risks and costs of duplication and inconsistency are avoided, and forum-shopping and collateral litigation is discouraged. Third parties — especially associates, such as parents or children or private companies, of one or other of the spouses — who use the occasion of the demise of a marriage to assert a right against the property of one or other (or both) of them, cannot reasonably complain if their claim is treated as part of the larger matrimonial dispute in the context of which it arises.

21    In Vaughan v Frost [2010] NSWSC 492, White J considered an application to transfer proceedings to the Family Court, describing it as very similar to Valceski, referred to above. His Honour observed:

11    It is almost always preferable that a controversy be determined in a single proceeding to avoid potentially conflicting findings and ultimately to reduce the costs for all parties.

12    The plaintiffs say that their costs will be increased if they are compelled to participate in the wider matrimonial cause in the Family Court. That is so partly because the proceedings between the defendants will raise issues with which the plaintiffs are not concerned, and also because even issues concerning the property of which they claim beneficial ownership will be dealt with in ways which the plaintiffs say will increase costs. In particular, valuations of the properties in question will be required in the Family Court, whereas such valuations would be irrelevant to their claim to be the beneficial owner of the property.

13    However, when the position of all parties is taken into account the general principle is, and experience teaches, that a single proceeding dealing with all issues is likely to minimise the overall burden of costs for all parties. If proceedings continue separately the defendants will be required to incur costs on matters of which there will be duplication.

…

28    I do not regard the delay of some months, if the proceeding is expedited in the Family Court, as a sufficient reason for not transferring the proceedings to that court. Such a delay would not outweigh the desirability of the whole controversy being determined in a single proceeding. Moreover, the plaintiffs waited until there was a breakdown in the defendants’ matrimonial relationship before bringing their claim. The plaintiffs’ counsel submits that it was not until late in 2009, after the marriage broke down, that the plaintiffs became aware that the first defendant disputed the existence of the trust. I was not referred to any evidence that the plaintiffs had asserted the existence of the trust to the first defendant, except in the context in the negotiations to a property settlement and the disclosure of assets after the breakdown of the marriage. That is to say, the plaintiffs ran the risk that they might die without a determination of their asserted property rights and apparently without documentary evidence of those rights.

29    I would be more concerned by a delay of up to three years in the determination of the plaintiffs’ claim. But if the Family Court did not expedite the proceeding, it would be open to the plaintiffs to apply to that court for an order to transfer the whole proceedings to this court. This court would have cross-vested jurisdiction to deal with the application under the Family Law Act (Young v Lalic [2006] NSWSC 18 ; [2006] 197 FLR 27 at [37]–[38]). Without binding another expedition judge, it would appear to me that the entire controversy would have the same claims to expedition as the present suit.

30    Turning then to matters raised by s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act, the matters in s 5(1)(b)(ii)(A) and (B) are indications that the proceedings are appropriate to be maintained in this court. But the interests of justice to be considered under s 5(1)(b)(ii)(C) are in favour of transfer as the present suit is but part of the wider controversy.

31    As in Valceski v Valceski (at [85]) justice is best done by one court resolving the whole justiciable controversy in order to avoid duplication and inconsistency. That consideration is not outweighed by the evidence of anticipated delays in the Family Court.

Federal jurisdiction cases

22    In Pedersen v Young (1964) 110 CLR 162, the High Court considered proceedings that had been commenced in the New South Wales registry of that Court against a resident of Queensland, claiming damages for negligence arising from a motor vehicle accident. The proceedings were commenced more than three years after the date of the alleged injury. The defendant sought to rely upon provisions under the Queensland statute of limitations. The plaintiff demurred upon that basis that the Queensland provisions did not apply to proceedings in the High Court in New South Wales. The demurrer was successful and the limitations defence was found not to be applicable because s 79 and 80 of the Judiciary Act did not pick up and apply Queensland law other than when that Court was exercising jurisdiction in Queensland. The Queensland limitation law therefore did not apply to the New South Wales proceedings in the High Court (nor, by parity of reasoning, to any other federal court in New South Wales). That was because, as Kitto J pointed out at 165.7:

… all Queensland laws must be treated as binding in this Court, as federal law if not by their own force, whenever the Court is exercising jurisdiction in Queensland.

23    Taylor J in Pedersen similarly held at 166 that the Queensland limitation provisions had “no application to actions properly commenced in [the High Court] in a State other than Queensland”. Menzies J said at 167.8 that whatever ss 79 and 80 of the Judiciary Act meant, “they have not made applicable the procedural laws of Queensland to an action commenced and pending in the New South Wales Registry of [the High Court]”.

24    The correctness of Pedersen has never been doubted, given the plain words to that effect in s 79(1) of the Judiciary Act. Indeed, prior and subsequent authority of the High Court, discussed below, leaves no room for any other interpretation.

25    The above statements of principle in Pedersen were made in the context of the prior High Court decision in Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168. In Owens [No 2] at 170 it had been stated that the purpose of s 79 of the Judiciary Act was to:

… adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the right of the parties to the lis are to be ascertained and matters of procedure are to be regulated … [emphasis added]

26    Similarly, in Northern Territory of Australia v GPAO (1999) 196 CLR 553 at [80], it was said that s 79 goes no further than is reasonably necessary:

… to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements of which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself … [emphasis added].

27    The above statements of principle in Owens [No 2] and in GPAO were both expressly quoted by the plurality of the High Court in Rizeq v Western Australia [2017] HCA 23; 344 ALR 421 at [80] and at [91] respectively; see also [90], [92] and [103]. It follows that it is beyond doubt that Queensland statute and subordinate legislation will not be applied by the operation of s 79 of the Judiciary Act to proceedings in this Court conducted in New South Wales.

The Bank’s case for a transfer and competing arguments

28    Relying on the authority of Shultz, Valceski and Vaughan, and with reference also to the jurisdictional issues raised by Pedersen and addressed in Rizeq, counsel for the Bank advanced the following arguments:

(1)    it is sufficient for the purposes of the “the interests of justice” test in s 5 of the Cross-vesting Act that it be demonstrated that the Queensland Supreme Court is the “more appropriate forum” in which the existing proceedings and the Bank’s proposed SOC should both be heard and determined: Shultz at [14]; Valceski at [69] – further arguments on how this test was met are detailed below;

(2)    it was not incumbent on the Bank as transfer applicant to demonstrate that this Court was a “clearly inappropriate forum”: Shultz at [14];

(3)    if one court is shown to be more appropriate than the other “however so slightly”, transfer to the more appropriate court is mandatory: Valceski at [70];

(4)    once this Court is satisfied that the threshold has been reached, the terms of s 5(4) of the Cross-vesting Act are mandatory and transfer of the proceedings must take place, with no occasion for the exercise of discretion arising: Shultz at [63], [222];

(5)    in considering the interests of justice, the applicants’ initial choice of forum was not significant (though acknowledged to be of concern to them) and the Bank bears no onus to show some good reason to disturb that choice: Shultz at [77], [168]; Valceski at [70];

(6)    similarly, the location of a party’s legal representatives cannot be determinative of applications of this kind: Valceski at [73]; and

(7)    while an assessment of the interests of the parties is required in considering the interests of justice, where those interests are conflicting that does not ordinarily require the interests of one party to be preferred over the other: Shultz at [15]-[16].

29    The Bank’s transfer argument substantially turned on determining which is the more appropriate forum for hearing the applicant’s case and the Bank’s proposed SOC at the same time.

The substantial case put forward by the applicants in opposition

30    The affidavit evidence of Mr Gleeson as to why he and the other applicants wished to have their proceedings remain in the Sydney registry of this Court focussed on difficulties in him and other witnesses travelling to Queensland, as follows:

18.    At the time of entry into the Credit Contracts being the subject of these proceedings I was not told about any jurisdiction clauses. I noticed the clauses when I was reading the agreements. They caused me concern because I assumed they meant that there was a chance I would need to travel to Brisbane. Due to my son’s medical circumstances described in paragraph 28 herein I did not want to run the risk of having to travel to Brisbane at any time. I therefore telephoned Darryl Herman of the Bank of Queensland with whom I had been dealing in respect of the agreements and we had a conversation using words to the following effect:

Me: “I notice the jurisdiction clauses which say that the agreements are subject to the laws of Queensland. I need this to be changed because I cant [sic] travel to Queensland as my son has a life threatening medical condition which means I need to be near him at all times.”

DH: “The clauses are non exclusive jurisdiction clauses so this means it is not the exclusive jurisdiction of Queensland so you don’t need to worry about that.”

19.    If had known at the time of that conversation that the Respondent would seek to rely on those clauses in having proceedings transferred to Queensland I would have insisted that the clauses be removed.

20.    The Credit Contracts being the subject of these proceedings were all executed by me in my personal capacity and as a director of the corporate Applicants, Martin Gleeson Pty Ltd and Kieran Pty Ltd, and by my wife in both her personal capacity and as a director of the corporate Applicants in New South Wales.

21.    Most of the dealings I had with respect to the Credit Contracts being the subject of these proceedings were over the phone.

Difficulties for witnesses to travel to Queensland

22.    My solicitor has informed me that both my wife and I and my son will be required to provide affidavits in support of the Applicants’ claim and that we will likely be required to be examined and cross examined at the hearing of these proceedings.

23.    I am 67 years old. I have arthritis in both my knees. The arthritis causes me a lot of pain if I sit for an extended period of time. If my wife, Gavin and I had to travel to Queensland for a hearing we would drive because it is the cheapest mode of transport.

24.    The 10 hour or so drive from Orange to Brisbane will probably cause me significant pain in my knees.

25.    The present family business consists of [i] Selling hay and [ii] concluding development projects of which only the present matter [the Oaka Street development] is under management. We have no other developments planned.

26    The family business is operated by myself, Judith and Gavin. Judith and I attend to the day to day tasks required to upkeep the Farm. This includes but is not limited to, hand feeding 300 head of breeding ewes, finishing 350 head of fat lambs, hand feeding and watering other farm animals as in sheep dogs, and chooks

27    Gavin my son works in the office at the Farm. He does all of the administrative work, including marketing hay related to the family business.

28    My son Gavin suffers from a condition called Marfan Syndrome. The condition is life threatening. Since Gavin was diagnosed with the condition he has lived either at the Farm with Judith and me or close to us. This is because the condition means that Gavin could suffer from a life-threatening aneurism at any time. It is therefore imperative that he has people familiar with his condition in close vicinity at all times and is close to his doctors and Orange hospital, who have instant access to Gavin's specialist marfans cardiologist and specialist vascular surgeon, at Royal Prince Alfred hospital in Sydney, who are familiar with his past records and can act immediately if needed.

29    If Gavin was required to travel to Brisbane for a hearing he would incur significant expenses because he would have to:

a.    Make enquiries with doctors in Brisbane who are familiar with Marfan Syndrome; and

b.    Arrange for those doctors to review Gavin's medical records and make themselves available for the duration of his stay at Brisbane.

30    Since Gavin was diagnosed with Marfan Syndrome he has seen doctors from the Orange Hospital. The Orange Hospital is a 2 to 3 minute drive from Gavin's home.

31    It is the intention of the Applicants to continue to progress our Originating Application in this Honourable Court in Sydney being our choice of jurisdiction, due to its location, cost and convenience and the fact that our legal team is located in Sydney.

31    At the hearing of the transfer application, counsel for the applicants handed up and relied upon further written submissions which, styled as a “List of Considerations”, relevantly stated as follows:

a.    their witnesses [three in total at this stage] all reside in NSW not Qld;

b.    there are medical issues with 2 of the 3 Applicant witnesses travelling outside the State;

c.    these factors were agreed between Mr Gleeson and Mr Herman before the credit contracts were entered into;

d.    financial hardship to the Gleesons;

e.    the business of the Applicants is located in and operated from NSW;

f.    extra costs and expenses in travel, new lawyers, accommodation and the resulting dislocation.

32    The balance of the applicants’ “List of Considerations” document did not measurably add to the persuasiveness or even thrust of the six points reproduced in the preceding paragraph. It was submitted on behalf of the applicants that a case relied upon by the Bank, Khoury v Commonwealth Bank of Australia trading as Bankwest [2013] FCA 304, involved error in applying the test of “more appropriate forum” rather than the statutory test of “interests of justice”. However, that submission cannot be accepted in light of Shultz, in which the High Court at [14] clearly stated that the test of “interests of justice” is met once it is determined that one Court is more appropriate than another, taking all relevant considerations into account. Many of the other arguments advanced by counsel for the applicant were difficult to understand and, in any event, did not meet the case advanced by the Bank.

33    The substance of the applicants’ case turned on the proposition that there was nothing wrong with dual proceedings run one after the other (if the applicants were unsuccessful) and that the applicants’ interests were effectively as one with the interests of justice so as to compel dismissal of the Bank’s transfer application. It follows that even on the applicants’ best arguments, the critical question for determination is which is the more appropriate forum. Some of the more important practical problems that the applicants face are addressed towards the end of these reasons.

More appropriate forum

34    For the following five reasons, counsel for the Bank argued that the Queensland Supreme Court is the “more appropriate forum” in which to determine all the issues between the parties in respect of the existing proceedings in this Court and in the Bank’s proposed SOC:

(1)    this Court lacks jurisdiction to hear and determine all the issues raised by the Bank’s proposed SOC (at least in the New South Wales registry of this Court);

(2)    most of the agreements that are the subject of the proceedings in this Court and the subject of the Bank’s proposed SOC are subject to the laws of Queensland by reason of jurisdictional clauses, both exclusive and non-exclusive, submitting to the jurisdiction of the Queensland courts;

(3)    even if, in the alternative, this Court does have jurisdiction to hear and determine the entirety of the competing claims in New South Wales, there are live issues as to whether or not this Court can make orders for the effective and efficient enforcement of any judgment for possession of land in Queensland should the Bank’s proposed SOC be successful;

(4)    transfer of these proceedings to the Queensland Supreme Court would enable one court, which plainly had jurisdiction to determine all the pleaded issues in dispute, to hear and determine the issues without the prospect of duplication; and

(5)    each of the other factors relied upon in Khoury justifying transfer of relevantly identical proceedings to the Supreme Court of New South Wales, apply with equal or greater force to this application.

35    As set out below, counsel for the Bank developed each of the above five reasons as to why the Queensland Supreme Court was a more appropriate forum in which to determine all issues between the parties arising from these proceedings and the Bank’s proposed SOC. The response on behalf of the applicants is considered at the same time.

The Bank’s first reason: want of jurisdiction in this Court as to key aspects of the Bank’s proposed SOC

36    As to the jurisdiction of this Court to hear and determine the Bank’s proposed SOC in New South Wales, it was pointed out that a central aspect of that claim requires the exercise of power to grant an order for possession that arises under Queensland statute. The appropriate form of proceeding in which a claim of possession is made is under s 78 of the Land Titles Act, brought in accordance with the Uniform Civil Procedure Rules 1999 (Qld): Bendigo and Adelaide Bank Ltd v Bridgen [2016] QDC 220 at [3]. Those rules provide the basis upon which a Queensland court can enforce an order for possession, including by issuing a warrant for the possession of land. The problem, as counsel for the Bank pointed out, is that the matters that are the subject of the Bank’s proposed SOC do not fall within the original jurisdiction of this Court. The only circumstance in which that claim could be advanced in this Court would be under the Court’s accrued or associated jurisdiction. Even if a claim in respect of moneys outstanding on loan and associated agreements and a claim for possession of land can fall within this Court’s accrued or associated jurisdiction, that is subject to the application of ss 79 and 80 of the Judiciary Act. However, consistently with the decision of the High Court in Pedersen, and also the passages referred to above from Owens [No 2], GPAO and Rizeq, s 79 of the Judiciary Act cannot pick up and apply Queensland legislation, including subordinate legislation, to the proposed proceeding if they were to be commenced in the New South Wales registry of this Court.

37    Counsel for the applicants endeavoured to argue, albeit somewhat faintly in the final result, that there was no such problem, or that such a problem did not matter. Ultimately, he did not put up any compelling or convincing argument as to how it was that this Court in New South Wales could deploy the relevant Queensland legislation or subordinate legislation contrary to such clear and binding High Court authority. Accordingly, the Bank has made good the proposition that the proposed proceedings, relying as they do on Queensland legislation and subordinate legislation, could not be litigated in this Court in New South Wales.

38    For completeness, counsel for the Bank correctly pointed out that s 80 of the Judiciary Act had no application, by reason that it only applied to the common law and any power of the Court to order possession is purely statutory. Accordingly, there was no occasion for the application of common law choice of rules by reason of s 80.

The Bank’s second reason: exclusive and non-exclusive clauses in the agreements between the parties

39    The second submission made on behalf the Bank was that, by their terms, almost all of the agreements the subject of these proceedings and the proposed SOC are governed by the laws of Queensland, as they contain either a non-exclusive jurisdiction clause or an exclusive jurisdiction clause submitting to the jurisdiction of Queensland. In resisting this submission, counsel for the applicant pointed to a dispute, raised in the applicants’ evidence, concerning alleged representations by an officer of the Bank to Mr Gleeson about the operation of those clauses. While I am inclined to the view that the conversation referred to did not go beyond a discussion about the non-exclusive jurisdiction clauses, and therefore did not entail any discussion of the exclusive jurisdiction clauses, the evidence of Mr Gleeson was at least unclear, if not ambiguous. There was no oral evidence, and certainly no cross-examination on this topic. It is at least possible that Mr Gleeson was led to believe, whether innocently or otherwise, that the documents he signed did not mean that any litigation necessarily had to take place in Queensland.

40    In the circumstances of this case, it is not necessary to resolve the competing positions, even if that resolution was more likely to favour the Bank because of the lack of clarity in Mr Gleeson’s evidence of the kind necessary to exclude the operation of at least the exclusive jurisdiction clauses. Such resolution alone is not determinative of the most appropriate forum test and is therefore not, of itself, sufficient for the Bank’s transfer application to succeed. In any event, it is not the Bank’s strongest point. I therefore decline to take this aspect into account in the determination of this application, necessarily without determining the point adversely to the Bank either.

The Bank’s third and fourth reasons: effective/efficient disposition of the Bank’s proposed SOC and existing claims; and, consolidation of proceedings in one court with jurisdiction to determine all the pleaded issues in dispute

41    It is convenient to deal with the third and fourth points together. The third point advanced on the issue of “more appropriate forum” on behalf the Bank was that even if, contrary to the Bank’s primary argument, this Court sitting in New South Wales did have jurisdiction to hear and determine the claims for possession, complications would arise in respect of the ability this Court to make appropriate orders for the effective and efficient enforcement of possession over property in Queensland if the Bank’s proposed SOC succeeded. While those arguments were detailed, they do not bear forensic repetition for the purposes of these reasons, especially as this alternative ground does not really require determination given the adverse conclusion on the jurisdiction point. It suffices to observe that there is no well-established procedure for possession of land in New South Wales in this Court, let alone in this Court in New South Wales in respect of property in Queensland.

42    The practical reality is that there is both a want of jurisdiction, and even if that could be overcome, a want of practicality and efficiency in endeavouring to litigate the Bank’s proposed possession claim in this Court in New South Wales. Counsel for the applicants sought to argue to the contrary, but that argument was not developed in a way that meets the compelling submissions in writing for the Bank on this topic. As pointed out earlier in these reasons, the real argument being advanced on behalf of the applicants did not involve any real suggestion that this Court could deal with the Bank’s proposed possession claim efficiently. Rather, the argument advanced on behalf of the applicants was for the proceedings in this Court to be conducted in the first instance and, if the applicants were not successful, for subsequent proceedings to be brought by the Bank in the Queensland Supreme Court. It follows that attempting to litigate the Bank’s proposed SOC in this Court in New South Wales, assuming the apparently insurmountable jurisdictional obstacles could somehow be overcome, presents substantial practical difficulties.

43    By contrast, as correctly submitted by counsel for the Bank, every aspect of the existing proceedings and the proposed proceedings is capable of being dealt with by the Queensland Supreme Court without there being any issue as to want of either jurisdiction or suitable process. The evidence disclosed a well-trodden and efficient process for dealing both with possession claims and collateral claims or defences of the kind sought to be advanced by the applicants in this Court. No substantial argument was put by counsel for the applicants to contradict that proposition.

The Banks’ fifth reason: all of the factors in Khoury justifying transfer are present in this case

44    The Bank relies also on the result and reasoning in Khoury. In that case, Farrell J was concerned with the question of whether proceedings in this Court should be transferred to the Supreme Court of New South Wales. The s 79 jurisdictional problems present in this case were therefore absent. In a broad sense, Khoury was otherwise similar to the present case, in that the debtors were seeking to have determined in the first instance the validity of agreements and collateral agreements that were relied on by the bank in that case for repayment of funds advanced. Her Honour summarised the arguments for the applicants in that case as follows:

6    The applicants oppose the Transfer Application on the grounds that:

(a)    The applicants have properly brought these proceedings and it is premature to make this order until the Restraint of Sale of Dural Land Application has been determined.

(b)    The Federal Court has jurisdiction and power to determine all issues, including a cross-claim for possession of the Dural Land by reason of ss 22, 23 and 32 of the Federal Court of Australia Act 1976 (Cth).

(c)    The applicants are entitled prima facie to have their action tried in the ordinary course of the procedure and business of this Court. It is a grave matter to interfere with that entitlement and to do so requires justification on proper grounds. The burden is on the respondents to show that it is just and convenient that the applicants’ ordinary rights should be interfered with: see Cameron’s Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428 at 431 per Wilcox.J.

(d)    The applicants would be forced to give up the tactical advantage that they have as applicants (and not respondents) in this Court. The first respondent is more familiar and comfortable with the Supreme Court Possession List than the Federal Court.

(e)    The applicants provided an undertaking to the Court that they would vacate the Dural Land if these proceedings were determined unfavourably to them.

(f)    Section 12GK(1) of the ASIC Act applies to the transfer of proceedings in relation to the claims made in these proceedings under the ASIC Act, not s 5(4) of the Cross-vesting Act. The applicants accept that the same remedies are available in the Federal Court and the Supreme Court for the purposes of s 12GK(2).

(g)    The judges of the Supreme Court who sit in the Possession List are common law judges and thus less familiar with the equitable principles which are relevant to determine the applicants’ general law claims and those made under the ASIC Act.

45    However, Farrell J considered the following arguments by the bank in Khoury to be more compelling (omitting those dealing with topics already addressed):

(1)    The matters subject to the Federal Court proceedings and the proposed Supreme Court proceedings, both arising from loan agreements and a mortgage, were interrelated and there was no basis to think that the matters should be split between two courts: [7(b)].

(2)    There would be particular advantages to the parties in litigating in the Supreme Court having regard to the specialist nature of the Possession List of the Supreme Court and the efficient and cost-effective processes for dealing with orders for possession of land available under the UCPR: [7(d) and (e)].

(3)    It would be more appropriate for the respondents to commence an action for possession in the Supreme Court, as opposed to filing a cross-claim, because of the advantages of the Possession List and by reason of the fact that enforcement might require a Sheriff of New South Wales, whose assistance could more easily be employed: [7(f)].

(4)    The proceedings were not significantly advanced: [7(h)].

(5)    The applicants would not lose any first-mover advantage and their choice of venue was not a relevant consideration: [7(h) and (i)].

(6)    There would be an advantage in having the Supreme Court resolve the whole controversy between the parties without duplication of evidence and issues: [7(i)].

46    Relying on the reasoning in Khoury, the Bank submitted that:

(1)    The issues raised in the present proceedings are directly related to the claims that are the subject of the proposed SOC. There is significant overlap, and the Bank anticipates that many of the factual allegations that are the subject of these proceedings will be raised in the defence of the proposed SOC: Khoury [7(b)] and [14].

(2)    The Uniform Civil Procedure Rules 1999 (Qld) set out rules governing proceedings for the possession of land in Queensland, including the enforcement of such orders: Khoury [7(d)] and [14].

(3)    The “Case Flow Management” procedures in the Queensland Supreme Court contained in Practice Direction 17 of 2012 provide for the efficient management of proceedings conducted in that court: Khoury [7(d) and (f)] and [14].

(4)    Judges in the Queensland Supreme Court are experienced in dealing with claims for the possession of land in that jurisdiction: Khoury [7(e)] and [14].

(5)    These proceedings are not significantly advanced, and thus there is no risk of any relevant delay in the progression of the proceedings, or wasted costs, due to the transfer: Khoury [7(h)] and [14].

(6)    The applicants’ choice of forum, and subjective preferences for it, are not relevant matters to be considered. Similarly, there is no presumption that the court whose jurisdiction has been first invoked should be preferred: Khoury [7(i)] and [14].

47    No compelling submissions to the contrary were advanced on behalf of the applicants.

Concessions by the Bank relevant to the applicants’ concerns

48    During the course of the hearing, counsel for the Bank made the following concession concerning the situation with the son of Mr and Mrs Gleeson:

MR GLOVER: And if I can come to Mr Gleeson Junior. I asked my instructors to obtain instructions while my friend was on his feet. We would be content for him to be dealt with by video link if he were to be called if the proceedings were transferred.

HIS HONOUR: When you say video link, would that also include potentially of a kind that would involve not necessarily having to even travel to Sydney?

MR GLOVER: Yes. If there are facilities. [P84]

49    On the afternoon after the hearing of the application, the solicitors for the Bank provided the following information by email, as requested by the Court, in relation to Mr Gleeson’s health and financial position:

We are instructed that our client is content with Mr Gleeson providing his evidence by way of video link. If a circumstance arises in which Mr Gleeson needs to be examined in person, then our client is content for that examination to occur in Sydney, or alternatively, our client will be willing to pay for Mr Gleeson’s airfares and accommodation for the duration of his evidence (if required) should there be a need for him to travel to Brisbane.

50    On the Tuesday of the week after the hearing, the applicants sought leave to make a further submission. The Bank’s primary position was to oppose leave being granted, but if granted to be given an opportunity to respond. Leave was granted to the applicants and to the Bank to respond.

51    The further submission on behalf of the applicants was as follows:

… if Martin Gleeson and Gavin Gleeson were to give evidence via electronic means, their ability to provide effective instructions to their solicitor would be compromised by the fact that they would not be present in court to hear the evidence of the other side.  This is an aspect of the situation that Mr Gleeson addressed specifically in his evidence at paragraphs 18 and 19 of the Gleeson affidavit. Their compromised ability to provide effective instructions to their solicitor would have the effect of compromising their counsel’s ability to effectively advocate on their behalves:  [State of] South Australia v Totani [2010] HCA [39; 242 CLR 1] at [62] and [69]

52    The reliance by the applicants’ legal representatives upon the paragraphs in Totani referred to above is difficult to understand and apparently misplaced. That was a case arising in the context of the principles drawn from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The High Court in Totani held that South Australian control order legislation was incompatible with the constitutional integrity of the Magistrates Court of South Australia, insofar as the legislation purported to enlist that court to give effect to legislative and executive policy. The references in the passages relied upon to the institutional integrity of courts and their processes have no material bearing on the issues arising in this transfer application.

53    In response, supplementary submissions for the Bank relevantly made the following points:

2.    … whether or not taking evidence by video link is appropriate is to be determined having regard to the particular circumstances of the case, the nature of the evidence, the significance of that evidence to the resolution of the matters of controversy, and the circumstances of the particular witness. The extent to which the circumstances of this case may render the giving of evidence by video link inappropriate are presently unclear. In any event, should any such circumstances arise, they are fully addressed by the Respondent’s position that it is prepared to take Mr Martin Gleeson’s evidence in Sydney or, if his attendance were required in Brisbane, to pay his travel and accommodation expenses (for the duration of his evidence). The Respondent’s position is the same in respect of Mr Gavin Gleeson. Accordingly, any concern that taking evidence by video link may not be appropriate can be overcome, and does not support a conclusion that the interests of justice require that the proceedings remain in this Court/Registry.

3.    … rather than supporting a conclusion that the refusal of the Respondent’s application would avoid the need for Mr Martin Gleeson and Mr Gavin Gleeson to travel to Queensland, the Applicants’ position makes clear that such travel is inevitable even if the present application were refused. There are a number of facility and security agreements pleaded in the Proposed Claim that are not the subject of claims for relief in these proceedings. Therefore, even if the Applicants’ approach to the conduct of the dispute were adopted (i.e. these proceedings remain in this Court/Registry and the Proposed Claim proceed in the Queensland Supreme Court at some later stage), and they achieve some measure of success in these proceedings, there will remain at least part (if not all) of the Proposed Claim to be determined in Queensland. When the Proposed Claim comes on for a hearing, the Applicants’ position means that it will then be necessary for Mr Martin Gleeson and Mr Gavin Gleeson to travel to Brisbane to be present in Court to give instructions.

As a result, whether the totality of the dispute between the parties is heard and determined by the Queensland Supreme Court (or in the Queensland District Registry of this Court), or these proceedings are heard and determined separately from the Proposed Claim, the Applicants’ desire for the Messrs Gleeson to be present in Court to provide instructions gives rise to the inevitable need for them to travel to Queensland at some stage. Accordingly, any concern that the transfer of the proceedings may give rise to a need for such travel (which is at the heart of the Applicants’ resistance to the Application) does not arise – the Applicants’ position means that the need for such travel will arise in any event. In those circumstances, the interests of justice do not require that there be two sets of proceedings to resolve the whole of the dispute between the parties, with the attendant duplication and increase in costs, in circumstances where one court can determine the whole of the controversy.

54    The Bank’s supplementary submissions therefore asserted that the further matters raised on behalf of the applicants did not support the conclusion that the interests of justice require that the present proceedings remain in this Court, with the result being that two sets of proceedings would be required to resolve the whole of the controversy between the parties. Rather, it was submitted that the interests of justice are best served by a transfer to facilitate the entire dispute between the parties being heard in the Queensland Supreme Court, or alternatively the Queensland registry of this Court.

55    The supplementary submissions for the Bank should be preferred to those for the applicants on the topic of the practical difficulties faced by the applicants. The two concessions by the Bank detailed above went a long way towards meeting the case advanced by the applicants for retaining the proceedings in New South Wales. The main remaining difficulty of the applicants’ solicitors being in Sydney without an interstate office does not outweigh the advantages of a transfer.

Conclusion

56    The key arguments advanced by the Bank should be accepted as outlined above. The Queensland Supreme Court is plainly the more appropriate forum for the determination of all the disputes between the parties, both present and pending. Most of the legitimate concerns raised on behalf of the applicants as to the difficulty they would face in litigating their dispute with the Bank in Queensland been met by the concessions made by the Bank reproduced above. The only notable exception is the location of the applicants’ legal representatives, which cannot be a significant consideration, let alone determinative. In the greater part, that leaves only the Bank’s arguments for a transfer, the most compelling of which are the jurisdictional and practical difficulties in having the whole of the controversy between the parties determined in this Court, especially in New South Wales. That is strongly supported by the inherent and obvious desirability of having all of the proceedings determined in one court at the same time, without the risk of duplication or inconsistency.

57    Counsel for the applicants seemed to agree at the hearing that the applicants were primarily concerned with retaining the proceedings in New South Wales, and did not have any strong preference for the proceeding to be transferred to the Brisbane registry of this Court rather than the Queensland Supreme Court. Even if that is not what he intended to convey, that is the practical reality arising from the case that was run on behalf of the applicants. Although a transfer to the Brisbane registry of this Court would cure the jurisdictional problem of the operation of s 79 of the Judiciary Act in New South Wales, it does not address the clear evidence of the extensive and expert nature of the possession jurisdiction in the Queensland Supreme Court. Factors such as the Queensland Supreme Court’s volume of cases of this kind, its expertise and well-established procedures and the advantage of direct, rather than indirect, application of Queensland law and processes compel the conclusion that there is no real advantage in having only a registry transfer within this Court.

58    The natural and appropriate place in which to litigate the entirety of the controversies between the applicants and the Bank is the Queensland Supreme Court, not this Court. While federal jurisdiction is involved in the case brought by the applicants, there is no legal or practical impediment to these proceedings being litigated in the Queensland Supreme Court. Having proceedings in two courts involves duplication of evidence, increased costs and the risk of inconsistent judgments, as well as the potential for greater delay, especially with the risk of seriatim proceedings. The disadvantages of the present proceedings being kept this Court are less in Brisbane than in Sydney, but are still real and significant.

59    In all the circumstances, the Bank’s primary application should be granted, with costs. These proceedings should be transferred to the Queensland Supreme Court. The costs of the balance of the proceedings in this Court should form part of the overall costs determination at the conclusion of the proceedings in that Court.

Associate:

Dated:    10 November 2017

SCHEDULE OF PARTIES