FEDERAL COURT OF AUSTRALIA

Inverness Medical Swtizerland GMBH v Advanced Clinical Systems Pty Limited

[2002] FCA 1261

PRACTICE AND PROCEDURE – application to transfer proceedings to Victorian District Registry

Federal Court Rules O 1 r 4, O 10 r 1(2)(f), O 30 r 6(2)

Federal Court of Australia Act 1976 (Cth) s 48

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

INVERNESS MEDICAL SWITZERLAND GMBH v ADVANCED CLINICAL SYSTEMS PTY LIMITED & ANOR

N 647 of 2002

8 OCTOBER 2002

STONE J

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion be dismissed.

2.         The costs of the notice of motion be costs in the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This proceeding commenced by an application and statement of claim filed in the New South Wales District Registry of this Court on 3 July 2002.  Consequently, the proper place of the proceeding is New South Wales; O 1 r 4 Federal Court Rules.  The respondents have, however, filed a notice of motion seeking an order under s 48 of the Federal Court of Australia Act (1979) Cth (“the Act”) that the proceeding be transferred to the Victorian Registry.

2                     It is well-established that the Court's discretion to make an order pursuant to s 48 of the Act is unfettered.  The leading authority as to the proper approach to the exercise of that discretion is National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, a decision of a Full Court on a similar application.  The Court expressed the test as follows (at 162):

            “Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.  It cannot and should not, in our opinion, be defined more closely or precisely.”

This test indicates why the authorities on such notices of motion are not very helpful in that each is so closely related to the particular facts. 

3                     The position of the parties to this matter can be briefly summarised. The respondents (the applicants on the notice of motion) are part of a tightly knit group of companies managed by the same three individuals in Victoria.  They carry on business in Victoria and not in New South Wales.  They are said to be small businesses with modest profits.  It was submitted that because of the flat administration and management style of the businesses, problems would arise in the management of the proceedings if they were to be continued in Sydney.  The respondents have instructed legal representatives in Victoria and submit that considerable work has already been carried out in relation to these proceedings.  The respondents have also instructed an expert witness who is resident in Victoria.

4                     The applicant is an overseas corporation which does not carry on business in Australia.  It does, however, have preferred legal representatives in Sydney, a relationship having previously been established in other matters.  The applicant has also instructed an expert witness who is resident in Sydney.

5                     The relative inconvenience for the parties seems to be finely balanced.  In the case of the respondents, the difficulty for them, were the proceedings to be continued in Sydney, would be in the close supervision of the proceedings and, if they were to change legal representatives, the instruction of those representatives in Sydney.  The applicant would have a similar difficulty were it to retain its present legal representatives and the proceeding were to be transferred to the Victorian Registry.  There is, perhaps, a difference between the two in the sense that, if the applicant, being an overseas corporation, were to send representatives to Australia to supervise these proceedings, presumably it would not be inconvenienced by a choice of Melbourne rather than Sydney.

6                     That being said, in my opinion there is very little difference between the inconvenience that each party will suffer if the proceedings are not continued in its preferred venue.  To a large extent, this being a national Court, that inconvenience can be overcome by appropriate and sensitive management, both of the trial itself and also the pre-trial proceedings.  It is possible for directions hearings to be held by videoconference.  It is possible at an interlocutory stage, or at the final stage, for the hearing to be held either in Sydney or in Melbourne, as the convenience of the parties, on balance, would seem to require.

7                     There is no presumption applicable here, nor is there in the strict sense any onus of proof.  However, it is necessary for the Court to have a good reason for ordering that the matter be transferred.  Bearing in mind the flexibilities that the Court has under O 30 r 6(2) to manage the proceedings in a way that will minimise inconvenience I am not convinced that there is such a good reason in this case.

8                     For these reasons I would dismiss the notice of motion.  The costs of the notice of motion should be costs in the proceedings.

Associate:

Dated:              15 October 2002