Cross-Vesting Civil Proceedings — A Practical Analysis of the Interests of Justice in the Determination of Cross-Vesting Applications

The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and legislation of the same name in each Australian State and Territory were introduced in 1987 to establish a uniform scheme for the cross-vesting of civil proceedings in Australia. Among other things, the cross-vesting scheme allows civil proceedings to be transferred from the Supreme Court of one State or Territory to the Supreme Court of another State or Territory if certain cumulative criteria are met. The exception in the legislation is s 5(2)(b)(iii), which provides that the 'interests of justice' is a separate and specific ground for a transfer Judicial interpretation of this populal; apparently catch-all provision has given rise to an almost formulaic list of factors that a court will take into account when determining a cross-vesting application under s 5(2)(b)(iii). Unhelpfully, and despite the uniformity of the legislation itselj the cases indicate that State and Territory courts are not adopting a wholly consistent approach in their consideration and application of these factors. This paper examines the particular tests that have been developed to determine whether a proceeding should be transferred in the interests of justice, including the factors a court will take into account when applying the tests. The analysis necessarily covers a review of the case law across all the Australian jurisdictions. Despite some judicial inconsistencies, the conclusion is reached that there are now some very cleal; established considerations by which the courts assess the 'interests ofjustice: As discussed in this papel; in the majority of cases, the courts' approach to these considerations should allow litigants to assess, with a reasonable degree of certainty, the prospective success or failure of a cross-vesting application under s 5(2)(b)(iii) of the Act.