This rather recent (12 February 2018) ex tempore decision of Brereton J provides a useful overview of the functioning of the cross-vesting scheme in a simple case.

In this case, the plaintiff was resident in New South Wales and the second defendant in Queensland, similar inconvenience would be suffered by each if the proceedings were not heard in their own State, the business of the corporation in question was based in Queensland, and the law on the relevant dispute – the law of contract – was the same in each State.

Brereton J summarised the law at [3] as follows:

”On an application for transfer of proceedings under s 5, the central question is, which is the more appropriate Court? It is not necessary that the Court in which the proceedings were instituted be a “clearly inappropriate forum” before a transfer order will be made; merely that it be shown that the proposed transferee Court is a “more appropriate” forum. “Appropriateness” is not purely a question of convenience, but involves an inquiry – which is not always capable of answer – as to which is the forum in which the proceedings would most appropriately be brought. That involves questions of jurisdictional nexus as well as mere convenience.”

His Honour held at [5]:

”At least where other matters are equal [in this case, residence of witnesses in different states and similar inconveniences, and the law being the same in each state on the relevant issues in the dispute ] the residence of a defendant tends to attract greater significance than the residence of the plaintiff. That is because jurisdiction ordinarily depends on the presence of a defendant rather than the presence of a plaintiff within its jurisdiction to enliven the Court’s adjudicatory jurisdiction. Thus, it has been said, in the context of the cross-vesting jurisdiction, that, ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction, and this may count in identifying the more appropriate forum: see BHP Billiton Limited v Shultz [2004] 221 CLR 400 at 423 [19]; British American Tobacco Australian Ltd v Gordon [2007] NSWSC 230 at [44], and BioAg Pty Ltd v Hickey [2007] NSWSC 296 at [7].”

The proceedings were transferred to Queensland.