FEDERAL COURT OF AUSTRALIA

Cundy v ACT Cross Country Club Inc [2009] FCA 1167

DAVID BRIAN CUNDY AND FRANCES MARY SETON TRADING AS CUNDY SPORTS MARKETING (ABN 45 876 294 256) v ACT CROSS COUNTRY CLUB INC (ABN 76 119 541 467)

NSD 952 of 2009

PERRAM J

13 OCTOBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion be dismissed.

2.         The costs of the motion be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 8 October 2009 I dismissed the respondent’s motion to transfer the present proceedings from the New South Wales Registry to the Australian Capital Territory Registry of this Court.

2                     The respondent submitted that such a transfer was appropriate because:

(a)               it was a voluntary organisation with little in the way of substantial assets;

(b)               there was an upcoming mediation which, if the matter were not transferred, would be conducted by a registrar of this Court in Sydney.  This would require the committee members of the respondent to absent themselves from work and travel to Sydney for the day, a result attended by both inconvenience and expense;

(c)               if the hearing of the matter were conducted in Sydney then it would be necessary for the respondent and its representatives to travel to Sydney for that hearing, again with corresponding inconvenience and expense; and

(d)               the matter was concerned with the Canberra Marathon and involved principally Canberra witnesses.

3                     The proceeding was commenced by the applicants in Sydney which is the closest city to the place at which they live, the Central Coast.  They will both, so it seems, be witnesses.  It follows that there are witnesses both in New South Wales and in the Australian Capital Territory.  I reject, therefore, the respondent’s submission that the choice of New South Wales as the appropriate registry was capricious on the applicant’s part.  It was, to the contrary, understandable.

4                     I do not think that a transfer to the Australian Capital Territory registry would lead to any significant reduction in costs.  A video link would still be necessary; only the identity of the party appearing by means of it would change.  I accept that if the matter remains in the New South Wales registry’s list then the respondent and its representatives will be required to travel to Sydney both for any mediation and for the trial.  However, I do not regard either of those matters as significant enough to justify a transfer from this registry.  It might be noted, in that regard, that if the matter were transferred as the respondent seeks, the same difficulties presently affecting the respondents would then affect the applicants.

5                     I reject also the argument that a failure to transfer the matter would involve excessive inconvenience to the conduct of the mediation in Sydney.  The officers of the respondent will need to take the day off work whether the mediation is dealt with in Sydney or in Canberra.  The drive from Canberra to Sydney is 3 hours; the burden is not excessive.

6                     It was for those reasons that I rejected the transfer application on 8 October 2009 with costs in the cause.

Associate:

Dated:         13 October 2009