FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Transfer of proceedings - Exercise of discretion - Location of witnesses - Convenient venue for trial and mediation - Effective case management

National Mutual Holdings Ltd v Sentry Corporation (1988) 19 FCR 155

P.J.E. PTY LTD v D.A.M.E. PTY LTD

VG 594 of 1996

JUDGE:           NORTH J

PLACE:           MELBOURNE

DATE:             13 JUNE 1997

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the respondent for the transfer of this proceeding from the Victorian Registry to the Queensland Registry of this Court. The parties agreed that the proper principles to be applied in an application of this nature are set out in the decision of the Full Court in the National Mutual Holdings Ltd v Sentry Corporation (1988) 19 FCR 155.  It is made clear by that case that there is a very broad discretion in relation to such an application.

In the end I have formed the view that it is appropriate to transfer this proceeding. The most influential consideration is that most of the witnesses at the trial of the proceeding, or at least a substantial number of the witnesses for the respondent, will come from Queensland.

It was probably in recognition of this fact that Mr Gillies, who appeared as counsel for the applicant, said that if the matter were to remain in Melbourne the applicant would agree to conduct any mediation of the matter in Brisbane, and the question of holding the trial in Brisbane was not foreclosed.  If it is likely that the convenient venue for the trial will be in Brisbane, then it is desirable that interlocutory steps be taken in the Court in Brisbane. Effective case management makes it desirable that the judge who will try the case should have the management of the case throughout its interlocutory steps. This argument is supported by the fact that this case had a false beginning and, although a number of steps have been taken to date, the issues between the parties are not very advanced and a judge now taking over management of the interlocutory steps can be seen as commencing management at an early stage of the case. The desirability of having the judge who will ultimately hear the matter regulate the interlocutory steps is not outweighed by my involvement in managing the case to date.

In coming to this conclusion, I recognise that there is some inconvenience to the applicant in the transfer of the proceedings. That inconvenience principally comes from the fact that the applicant currently engages solicitors in Myrtleford. Instructions for the applicant are given by Mr Schumann Junior, who resides at Mount Hotham, not far from Myrtleford. Transfer of the proceedings will mean that the applicant’s Myrtleford solicitors will have to appoint Queensland agents.  This inconvenience must be balanced against the consideration that if the applicant is successful its costs of engaging an agent will be payable as part of the costs of the action.

For these reasons I order that the proceedings be transferred to the Brisbane Registry of the Federal Court. 

Associate:

Dated:              4 August 1997