Simmon v Globe-Tech International Pty Ltd

[2013] NSWSC 658

Supreme Court

New South Wales

Medium Neutral Citation:

Simmon v Globe-Tech International Pty Ltd [2013] NSWSC 658

Hearing dates:

28 May 2013

Decision date:

29 May 2013

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

1. Order that District Court of New South Wales proceedings 2012/279729 be transferred to this Court pursuant to s 140(1) of the Civil Procedure Act 2005.

2. Order that the costs of the motion be Globe-Tech International Pty Ltd's costs in the proceedings.

Catchwords:

PRACTICE - transfer of proceedings from District Court - Civil Procedure Act 2005 s 140(3)(b)(ii) - whether "some other sufficient reason" to do so

Legislation Cited:

Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946

Cases Cited:

Studorp Ltd v Robinson [2012] NSWCA 382

Category:

Procedural and other rulings

Parties:

Faye Simmon (Plaintiff)
Globe-Tech International Pty Ltd (Defendant)

Representation:

Counsel:
D W Elliott (Plaintiff)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s):

2013/151077

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By its summons filed in this Court on 15 May 2013, Globe-Tech International seeks an order for the removal into this Court of proceedings currently pending in the District Court of New South Wales. Faye Simmon is the plaintiff in the proceedings in the District Court and Globe-Tech International is the defendant. Despite the fact that Globe-Tech International is the moving party and commenced the proceedings in this Court, it inexplicably described itself as the defendant and named Ms Simmon as the plaintiff. That was not an auspicious start. Globe-Tech International also seeks orders relating to the service of a cross-claim outside Australia. That is referred to below in more detail.

1. Ms Simmon commenced her proceedings in the District Court in 2012. She now relies upon an amended statement of claim filed on 21 November 2012. It is hopelessly inadequate for its intended purpose and barely, if at all, discloses anything vaguely approaching a properly pleaded cause of action. Ms Simmon does allege that on or about 9 November 2011 she suffered serious personal injuries when her fingers came into contact with sharpened pointed terminal ends of a steel linkage forming part of an item described as an equestrian or float tie. Globe-Tech International is alleged to have been the importer of this piece of equipment in circumstances that presumably rendered it a deemed manufacturer, although that is not pleaded in terms. Neither that nor the other manifold deficiencies in the pleading, however, appears to have prevented or discouraged Globe-Tech International from responding to the claim, and it proceeded to file its defence on 6 February 2013 without complaint.

1. Globe-Tech International's application is supported by an affidavit of Bruce Adrian Cussen sworn 14 May 2013. That affidavit reveals that Equitec Products Inc, a company located and apparently resident in Taiwan, appears to have manufactured the offending item. It maintained no office in Australia when Ms Simmon was injured and still does not do so. Mr Cussen has written several letters to Equitec seeking an indemnity from the company in respect of Ms Simmon's claim. A response dated 11 October 2012 confirmed that Equitec was the manufacturer of the item and that it "will take responsibility for our product." The status of that response in the context of the litigation remains unclear.

1. On 20 March 2013 Globe-Tech International filed a cross-claim against Equitec claiming damages and contribution or indemnity from it pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Mr Cussen purported to serve that cross-claim upon Equitec by letter dated 20 March 2013. No response to that letter is in evidence and Equitec has unsurprisingly not filed an appearance or a defence to the cross-claim as it was invited to do.

1. Mr Cussen has deposed to the receipt of instructions to effect service of the cross-claim through the Department of Foreign Affairs and Trade. The removal of the District Court proceedings to this Court is said by Globe-Tech International in those circumstances to be a necessary precondition to that course. It contends that that constitutes at least one "other sufficient reason" within the meaning, and for the purposes, of s 140(3)(b)(ii) of the Civil Procedure Act 2005. Another sufficient reason is said to be that the District Court has no jurisdiction to enforce any judgment, that may ultimately be obtained against Equitec, anywhere outside of Australia.

1. Ms Simmon opposes the application. She does not do so on any strict legal basis that strikes at its validity but upon the basis that if her claim remains in the District Court it will probably be given a hearing date this year whereas a similar outcome is unlikely if it is removed to this Court. Ms Simmon has tendered no evidence to support those propositions, relying instead only upon the general submissions of her counsel. It is difficult for me in the circumstances to have any useful understanding of the comparative procedural paths that the litigation is likely to follow in each case. Ms Simmon alleges no other procedural or other prejudice to which she may be, or become, exposed if the application is allowed.

1. Globe-Tech International has also sought the following orders:

"2. An order that leave is granted to [it] to further serve the first cross-claim on Equitec Products Inc., which is located in Taiwan.

3. An order that service of the first cross-claim upon [Equitec Products Inc] may be effected through the Australian Government Department of Foreign Affairs and Trade."

1. The first of those orders can be ignored. Leave is not required to serve proceedings outside Australia provided the claim meets one or other of the circumstances referred to in Schedule 6: see UCPR 11.2(1). The proposed cross-claim would appear to qualify.

1. I do not understand the second of those orders. Mr Cussen deposed at [22] of his affidavit as follows:

"22. I caused enquiries to be made which revealed that effective service is also achieved through diplomatic channels. I am instructed to take steps to effect service of the first cross-claim upon Equitec through the Department of Foreign Affairs and Trade."

1. No further or other information is supplied. No evidence is offered about what Mr Cussen's client proposes or intends to do. Mr Cussen's affidavit makes no reference to UCPR 11 or 11A. I am at a loss to follow what it is that Globe-Tech International is seeking in this prayer for relief. It is correspondingly difficult to frame an order that meets the claim as formulated.

1. It seems to me that there is a sufficient reason to transfer the District Court proceedings to this Court: see, for example, Studorp Ltd v Robinson [2012] NSWCA 382 at [53]. I consider that a party should be entitled to transfer proceedings into this Court if that is necessary to authorise or permit the service of originating process outside Australia, and to have this Court's jurisdiction invoked, if the defendant in that process is apparently not otherwise prepared to appear unless validly served with process or in circumstances where any judgment that may be obtained against it might otherwise be potentially unenforceable.

1. In those circumstances I consider that the following orders should be made:

1. Order that District Court of New South Wales proceedings 2012/279729 be transferred to this Court pursuant to s 140(1) of the Civil Procedure Act 2005.

2. Order that the costs of the motion be Globe-Tech International Pty Ltd's costs in the proceedings.

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