When the Grass is Greener on the Other Side; Cross-Vesting Proceedings

When the grass is greener

A few recent cases have seen the need to consider the issues of transferring proceedings to other jurisdictions via the Cross-Vesting Scheme.

Cross-Vesting looks and feels complicated but the issues are inherently practical.

The Cross-Vesting Scheme; the one way ticket to Greener Pastures

What is it? 

The Cross-Vesting scheme gives the Supreme Court of every State and Territory the jurisdiction to hear proceedings based on the law of another State or Territory.

It is a creature of legislation and each State and Territory has a similar act enabling the scheme.

What is the threshold issue?

The main issue to decide is whether it is more appropriate that the proceedings be determined by another Supreme Court having regard to the interests of justice.

How to apply the legal test?

The “interests of justice” is a broadly-based and flexible concept and is an expression to be interpreted broadly.

Nuts and bolts thinking

The determination of the “interests of justice” is essentially practical, or in the words used by the High Court in BHP Billiton Limited v Schultz [2004] HCA 61, it is a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

Check list of factors 

In James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Mason P endorsed the following useful checklist of factors:

1.    What is the application of substantive law?

2.    What is the forensic advantage or detriment conferred by procedural law?

3.    What is the choice made by a plaintiff or a forum and the reasons for that choice?

4.    What are the substantive connections with the forum?

5.    What is the balance of convenience to parties and witnesses?

6.    What is the convenience to the court system?

Other factors

Other relevant considerations include:

  • What is the place or places where the parties and/or witnesses reside or carry on business?
  • What is the location of the subject matter of the dispute?
  • What is the importance of local knowledge to the resolution of the issues?
  • What is the law governing the relevant transaction, especially if the matter involves the construction of State legislation?
  • What procedures available in the different courts?
  • What is the likely hearing dates in the different courts?
  • Is it sought to transfer the proceedings to a specialised court, for example, the Family Court?
  • Does an exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes?

What it is not?

The determination does not require consideration of whether the originating Court is an inappropriate forum.  Rather, the consideration is whether the intended new forum is a more appropriate forum. 

How to do it? 

The application is brought by way of Notice of Motion seeking an order in the nature of:

I order that proceedings no 1234 of [year] in this court be transferred to the Supreme Court of [State]. Costs of the proceedings to date and of this application to be costs in the cause.

Rules and Legislation 

  • Jurisdiction of Courts (Cross-Vesting) Act 1987
  • UCPR rr 44.2–44.5

Leading cases

  • BHP Biliton Limited v Schultz [2004] HCA 61
  • James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357
  • Re Wakim, Ex parte McNally (1999) 198 CLR 511
  • Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730

Recent cases in 2019


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