NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LIMITED v NABALCO PTY LIMITED

Supreme Court of the Northern Territory of Australia Angel J.
15, 21 and 23 June 1989 at Darwin
•

PRACTICE & PROCEDURE - cross-vesting - simultaneous proceedings in the Northern Territory and New South Wales - whether Northern Territory proceedings should be discontinued by leave when cross-vesting application made in New South Wales to transfer New South Wales proceedings to Northern Territory.

PRACTICE & PROCEDURE - leave to discontinue proceedings - proceedings out of New South Wales in respect of same course of action - application to remove New South Wales proceedings to Northern Territory - whether leave to discontinue Northern Territory proceedings should be granted.

PRACTICE & PROCEDURE - Supreme Court Rules - 0. 25 r.2 - leave to discontinue - nature of discretion.

Cases referred to:

S.C.I. Operations & Anor. v Trade Practices Commission & Ors.(1984) 53 A.L.R. 283, o. 25 r.2 of the Supreme Court Rules (N.T.).

Counsel for the plaintiff Solicitor for the plaintiff

Counsel for the defendant Solicitor for the defendant

G. Hiley Q.C. Poveys

T. Riley Q.C. Ward Keller

(	ang89005

ang89005
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 119 of 1989
(8904640)

BETWEEN:

NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LIMITED

Plaintiff
AND:

NABALCO PTY LIMITED
Defendant

CORAM: Angel J

REASONS FOR DECISION

(Delivered the 23 day of June 1989)

By summons filed on 30 May 1989, the plaintiff seeks leave to discontinue the present proceedings pursuant to Order 25 r.2(2)(b) of the Supreme Court Rules.

The present action concerns a claim by the plaintiff for $288,920.86 part premiums for the period 31 December 1981 to 31 December 1983 allegedly payable pursuant to an employer's liability policy in existence between the parties for the relevant period, indemnifying

the defendant in respect of liability for workmen's compensation.	The writ was issued on 1 March 1989.	The defendant entered an appearance thereto on 28 March 1989 and its defence on 11 April.	The plaintiff filed a reply on 24 April and pleadings formally closed pursuant to the Supreme Court Rules on 11 May 1989.	On 19 May 1989 the plaintiff filed a notice of discontinuance which it admits was ineffective by virtue of Order 25 r.2(2)(a) of the Supreme Court Rules.

On 25 May 1989 the defendant was served with proceedings out of the Supreme Court of New South Wales in respect of the same cause of action.	The defendant has applied in New South Wales to remove those proceedings to the Northern Territory pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (N.S.W.)

The defendant is registered in New South Wales and has its head office there, although its main business, that of mining, is in the Northern Territory.

In the present application I am not concerned with questions of forum non conveniens; nor am I concerned with the likelihood or otherwise of the defendant succeeding in its application before the Supreme Court of New South Wales to have the proceedings removed to the Northern Territory.	In so far as I have to consider the

Cross-Vesting legislation for present purposes, I am anxious not to preclude either party from arguing whatever they wish afresh before the Supreme Court of New South Wales on the defendant's application for removal.	That application is listed for mention on the 30 day of June 1989 at which time, presumably, a date will be set for the hearing of the application.

Like O. 22, r.2(1)(d) of the Federal Court Rules which was considered in S.C.I. Operations & Anor. v
Trade Practices Commission & Ors. (1984) 53 A.L.R. 283, O.
25 r.2 of the Supreme Court Rules (N.T.) does not specify the matters which the Court must take into account when considering an application for leave to discontinue.	Nor does it, as Lockhart J. said of the Federal Court Rule at p. 332:

"...impose any fetter upon the exercise by the court of its discretion.	It is for the court in the exercise of its discretion in each case to decide whether leave to discontinue should be granted and, if so, on what terms.	The court must consider all the relevant circumstances, including any injustice that may be sustained by any party if leave to discontinue is granted or refused as the case may be."

The defendant opposes the application to discontinue.	It is not suggested that the proposed discontinuance is an abuse of process, however the defendant does say that if these proceedings are

discontinued, the defendant will suffer a disadvantage which it is said, cannot be cured by the imposition of any terms.

The plaintiff has offered the defendant its costs of the action.	The plaintiff claims that it should not be required to litigate against its will and that no injustice will be caused to the defendant if leave to discontinue is granted.	Furthermore, argues the plaintiff, the plaintiff might have unilaterally discontinued the action before close of pleadings.	Why should it now, so soon after close of pleadings, not be permitted to do what it might have done without leave earlier?

It is evident from a consideration of s. 5 (2)(b)(i) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (N.S.W.) that the pendency of the present action in this court avails the de endant of an argument in the Supreme Court of New South Wales for removal of the New South Wales action to the Northern Territory.	If the present action is discontinued it is possible (I put it no higher than that) that this argument would be unavailable to the defendant.

In these circumstances I do not consider leave to discontinue should be granted.	The application in the Supreme Court of New South Wales is to be heard in the near

future.	I can see no reason why this Court should make any order at the present time that might affect either party's prospects in the N.S.W. litigation

Under the Cross-Vesting legislation the N.S.W. Court may have regard to, inter alia, "the interests of justice".	In some cases it has been said to be undesirable that a plaintiff should be compelled to litigate against its will.	But this is not a case of a plaintiff not wishing to litigate an issue; it is a case of a plaintiff wishing to litigate the issue elsewhere.	The plaintiff itself is responsible  for the status quoin the present case and the existence of the within proceedings is seen by the plaintiff to be relevant to the arguments before the Supreme Court of New South Wales.	In these circumstances it seems to me undesirable that the status quo should be disturbed before the Supreme Court of New South Wales is asked to consider, inter alia, "the interests of justice" and whether they would be best served by removal of the New South Wales proceedings to the Northern Territory.

In the circumstances I think it is appropriate for me to stand the plaintiff's present summons over for disposal after the Supreme Court of New South Wales has ruled upon the defendant's application to remove the New South Wales proceedings to the Northern Territory.	In the mean time it is obviously undesirable that the plaintiff be

required to run up further costs in this action.	The plaintiff may seek dispensation from compliance with the
Supreme Court Rules, if it wishes to, pursuant to Order 2
r.4.

I shall hear the parties as to what orders should be made and as to the costs of the present application.