It is not uncommon that a client asks us for assistance in changing the location of their court matter. Sometimes, a client who lives in a different state to the person bringing the matter against them will ask us for advice. Consider, hypothetically, that Bob is going through a dispute with his former business partner, Jim. Jim lives in QLD and has initiated proceedings there. Bob lives in NSW. The dental practice they ran together is also located in NSW. So how can Bob transfer proceedings from QLD to NSW?
Transferring Proceedings from QLD to NSW
In Australia, court proceedings can be transferred from one state to another because of the Jurisdiction of Courts (Cross-Vesting) Act 1987. This Act was passed in all states and territories to allow this process to be as smooth as possible for litigants.
In the above hypothetical, the Supreme Court of QLD must be satisfied certain conditions are met before it will agree to transfer the proceedings. So, Bob’s matter is being heard in the QLD Magistrates Court. Bob will first need to apply for the Queensland Registrar to provide him with consent orders to move the matter from the Magistrates Court to the Supreme Court. This can only be done for the purpose of the Supreme Court deciding whether or not to move it to NSW. How your matter will be transferred from one local court to another depends on the state or territory you live in.
What will the Court take into Consideration?
In Bob’s case, once the Magistrate Court transfers the matter to the Supreme Court, and before making a decision, the judge considers certain factors including:
- Where Bob and Jim live and carry on their dental practice,
- Where the dispute arises,
- How important it is knowing about NSW and its suburban peculiarities, as well as its state law to resolve the issue,
- What the law is that governs the particular transaction that the parties may be disputing,
- Whether Bob and Jim seek to transfer the proceedings to a special court such as the Family Court,
- Whether Bob and Jim have a Partnership Agreement (or anything in writing) with a clause nominating that courts in NSW or QLD to resolve their dispute (an “exclusive jurisdiction” clause)
State courts and territories can transfer their matters to other states or territories. But, they cannot transfer their matter to a federal court including the Federal Court or the Family Court. This is because of a decision that held states doing this fell foul of the Australian Constitution. The Federal Courts were only allowed to consider certain types of matters because of their clearly defined scope in the Constitution.
If you are applying to transfer your matter to another court or another state or territory, it is prudent to seek legal advice. We have discussed in this article some of the factors that the court will consider before it allows this. Please get in touch with one of our experienced dispute lawyers who can provide you with tailored advice as to the expected outcome of your application. And as for Bob, he was able to transfer his matter to the NSW Supreme Court.