FEDERAL COURT OF AUSTRALIA

Moltoni Corporation Pty Ltd v Adelaide Brighton Cement Limited

[2004] FCA 482

PRACTICE AND PROCEDURE – application for the transfer of proceedings to the Victoria District Registry – whether transfer appropriate in the circumstances of the case.

Federal Court of Australia Act 1976 (Cth) s 48

Trade Practices Act 1974 (Cth) s 52

Environmental Protection Act 1970 (Vic)

Judiciary Act 1903 (Cth) s 79

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

MOLTONI CORPORATION PTY LTD v ADELAIDE BRIGHTON CEMENT LIMITED

W255 OF 2003

LEE J

29 MARCH 2004

PERTH

THE COURT ORDERS THAT:

1.         The proceedings be transferred to the Victoria District Registry.

2.         Costs of the motion be costs in the cause of the respondent. 

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

REASONS FOR JUDGMENT

LEE J:

1                     By a motion filed on 3 February 2004 the respondent seeks an order that this matter, commenced by an application filed in this Registry on 24 December 2003, be transferred to the Victoria District Registry of the Court, pursuant to s 48 of the Federal Court Act 1976 (Cth). 

2                     The applicant’s claim against the respondent is for damages and/or declaratory relief for misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1975 (Cth) in relation to a “Geelong Site Closure Contract” (“the Contract”) under which the applicant agreed to undertake demolition and environmental remedial works on a cement production site (“the Site”) owned by the respondent and located in Geelong, Victoria.  Alternatively the applicant seeks a declaration in respect of a collateral contract and/or rectification of the Contract. 

3                     Under the Contract the applicant is to perform remediation work to a standard that will enable a “Statement of Environmental Audit” to be issued by an environmental auditor in accordance with provisions of the Environmental Protection Act 1970 (Vic).   Furthermore, the applicant has an option to purchase part of the Site, described in the Contract as the Hilltop Land, providing it meets certain preconditions, which includes obtaining the “Statement of Environmental Audit”.  The essence of the dispute is that the applicant claims to have been misled by certain pre-contractual written representations made by the respondent as to the scope of works required to remediate the Site to that standard.  The applicant claims to have incurred, and to continue to incur, extra cost in carrying out the remediation works.

4                     The relevant authorities referred to are well known.  In essence, it is necessary to consider what is the appropriate place for the trial of the matter as well as the appropriate place to manage the matter for the most efficient administration of the case prior to trial.  (See:  National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162). 

5                     On its facethe natural place for the management of the litigation, and the trial, is Victoria.  The parties may be said to have anticipated that when they stipulated that the law in Victoria was to be the law of the Contract.  The subject matter of the dispute involves the development of land situated in Victoria.  It is the extra cost of the development work, said to have been incurred by the applicant by reason of misleading conduct of the respondent, that constitutes the essence of the claim for relief.  That claim will involve an assessment of what is required to be done by the applicant under the Contract.  No doubt evidence concerning the nature of the Site and the remediation and environmental works required, will require witnesses to be instructed to examine the Site in detail, perhaps on more than one occasion.  Such expert opinion will not be able to be formed from examination of documents alone. 

6                     It is undoubted that the preponderance of witnesses in this matter will be domiciled in Victoria.  Furthermore, expert witnesses will need to be in Victoria from time to time to prepare and update their reports by inspection of the Site.  Of course, the location of witnesses is not a matter of major moment in deciding the outcome of an application to transfer a matter to another Registry. 

7                     On the other hand the applicant, a company incorporated in this State, was entitled to choose this Registry as the place at which to commence the proceeding.  The Court is a national court and there is no reason to expect that this Registry would be less able to deliver efficient management of the proceeding than another Registry of the Court.  Indeed, the Court, through the use of technological aids and other advantages, including the ability to convene the Court of any place in Australia, is well placed to deal with a matter that may have elements that extend beyond one State.

8                     Furthermore, the principal officers of the applicant reside in this State and, having chosen this Registry, it is apparent that the applicant will be inconvenienced if the matter were transferred to Victoria and the applicant were required to instruct solicitors in that State.  The solicitors instructed by the applicant in this State constitute a small local firm, not members of a national firm.  That is a matter to be given considerable weight and it is plain the applicant stands to be inconvenienced to a much higher degree than the respondent if the matter were transferred. 

9                     Having given regard to all of the foregoing matters, on balance, I am satisfied that this is one of those rare cases where there should be an order that the matter be transferred from the Registry of choice.  I am satisfied that the matter has an overwhelming connection with Victoria and that it should be managed in the Victoria Registry.  Furthermore, given that the parties have stipulated that Victorian law is to apply to the Contract it is desirable that the effect of s 79 of the Judiciary Act 1903 (Cth) be made consistent with that choice by ensuring that the section operates to apply the laws of Victoria and not the laws of Western Australia.  Development of the litigation will be dealt with more adequately by the Registry that has the greater connection with the matter.  It has not been submitted that the Victoria Registry will be unable to accommodate an early trial of the matter if that is required.

10                  I will order that the “proper place” under the Rules of the Federal Court be the Victoria Registry.  The costs of the motion will be costs in the cause of the respondent. 

Associate:

Dated:              23 April 2004