FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Advanced Medical Institute Pty Limited (Administrator Appointed) (No 2) [2011] FCA 327

THE COURT ORDERS THAT:

1.    The motion, notice of which was filed by the first and second respondents on 9 March 2011, is dismissed.

2.    Costs reserved.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Before the Court is a motion filed by the first and second respondents on 9 March 2011 seeking to have this proceeding transferred to the New South Wales Registry of the Court. The motion is supported by the other respondents.

2    The underlying proceeding concerns allegations by the applicant against the respondents of unconscionable conduct in the sale of medication and services to treat male sexual dysfunction. The jurisdiction to make such an order is contained in s 48(1) of the Federal Court of Australia Act 1976 (Cth), which provides:

The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

3    The considerations applicable to such an application have recently been summarised by McKerracher J in Mortimer v Opes Prime Stock Broking [2009] FCA 227 at [15] as follows:

•    There must be sound reason to direct that the proceeding be conducted or continued elsewhere. If the party commencing the proceeding chose the place capriciously the Court would be justified in giving no weight to the choice of place. The balance of convenience is important but its weight must vary from case to case. What needs to be ascertained is where the case can be conducted or continued most suitably bearing in mind the interests of the parties, the ends of justice and determination of the issues between them, and the most efficient administration of the Court (National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162).

•    The location of parties and witnesses, the place where the cause of action arose and the convenience of the Court are all factors (National Mutual 19 FCR 155 at 162, Wang v Australian China Marketing Co Pty Ltd [2001] FCA 13 at [21], Aquila Resources Ltd v Pasminco Ltd [2004] FCA 39 at [27]-[34] and [42]-[43].

•    Typically there is no factor that is determinative but rather it is necessary to weigh all the relevant factors that might connect the proceedings to one jurisdiction or the other (Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [19]).

•    The national character of the Court including its capacity to make flexible arrangements for the taking of evidence and the receipt of submissions is relevant. (Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239).

•    The question of which District Registry should conduct the proceedings does not raise matters of high principle. Essentially it is a matter of case management and proper recognition of the legitimate interests of each of the parties reflected in the balance of convenience as between them and the convenience of the Court and any economies and efficiencies which may attach to one choice or the other (Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49).

•    There may be flexibility – one Registry could conduct pre-trial management while allocating the trial to a judge in another Registry (Hog’s Breath at [10]).

•    There is no burden of proof governing the exercise of the discretion in s 48 of the Act (National Mutual 19 FCR 155 at 162).

•    The existence of related proceedings which may be case managed jointly may be important (Wyllie Group Pty Ltd [2000] FCA 1382 at [14]- [19]).

4    Mr Aldridge SC, who appeared with Mr Henskens on behalf of the administrators of the first and second respondents, addressed a series of factors which he contended made it convenient, and in the interest of the administration of justice, for the proceeding to be transferred to the New South Wales Registry. Some of the more significant factors relied upon included that the registered offices of the first and second respondents are located in Sydney, and that their employees, and doctors who provide consulting services for the business, are located in Sydney. He said that the witnesses likely to give evidence on behalf of the first and second respondents are located in Sydney. The administrators for whom Mr Aldridge acts are also located in Sydney. It would be onerous for them to conduct the case if it remained in Melbourne. It would be costly to creditors for the matter to be continued in Melbourne. The applicant is a national body with an office in Sydney, and the solicitors for the applicant have a presence in Sydney. The solicitors for the first, second, third, and fifth respondents are located in Sydney, and a mass of relevant documents are also located in Sydney.

5    Mr Wylie, who appeared on behalf of the fifth respondent referred to several additional factors. In particular, he said that it was not clear from the material where the complaints upon which the proceeding is based arose, and that the conduct in question occurred in Sydney.

6    Mr Burnside QC, who appeared with Ms Nichols as counsel for the applicant, opposed the transfer. He said that the staff of the applicant concerned with the application were based in Victoria, and counsel and solicitors for the applicant were located in Melbourne. Significantly, he submitted, witnesses in the case will come from both Victoria and New South Wales, as well as from other States. So far as can be judged at present, there will be a large number of witnesses in this case, and that a substantial number would come from each of Victoria and New South Wales. The administrators’ firm is a national firm. It was submitted that the application was premature because the case is presently in a management phase that does not require the attendance of individual parties. They are represented by lawyers, and their representatives are able to attend whether the management occurs in Melbourne or in Sydney. The question of the convenient location of the trial does not yet arise.

CONSIDERATION

7    A recitation of these factors demonstrates that the convenience and the interests of justice between the applicant on the one hand, and the respondents on the other, is fairly evenly balanced. The existence of a significant number of witnesses, at least on the applicant’s assessment, in Melbourne, together with the fact that the applicant chose to initiate proceedings in Melbourne, as it is entitled to do, are significant factors which to some degree favour the balance tipping towards the applicant’s side.

8    There is one issue, however, which requires separate consideration. This is a factor raised by Mr Green, who appeared as counsel for the third respondent, Dr Vaisman. In an affidavit sworn by his solicitor, Mr Gorczyca, on 15 March 2011, the personal circumstances of Dr Vaisman are set out. Those circumstances recite the medical and psychiatric difficulties of both his daughter and his wife. They demonstrate that it would be likely that Dr Vaisman would find it difficult and prejudicial to attend a trial in Melbourne. Mr Green also contended, correctly, that, as a party, Dr Vaisman is entitled to have an opportunity to attend the trial.

9    Were this factor unanswered, I would be inclined to see it as tipping the balance in favour of the third respondent, and consequently the respondents generally. However, in the end, I accept the submission made by Mr Burnside that it is too early to judge whether those personal factors would justify a trial in Sydney, rather than in Melbourne. A final decision on that matter would depend on the personal circumstances countervailing those of Dr Vaisman, which might affect other witnesses to be called at the trial.

10    These applications always present difficulty in a national court like the Federal Court of Australia. The Court is able to flexibly mould its processes in order to meet the convenience of the parties, and regularly does so. It is able to conduct interlocutory proceedings and final hearings by video link, if appropriate, all over Australia. In a case such as this it may well be appropriate that the trial be conducted in Sydney, or in a mixture of locations including Sydney and Melbourne, and indeed in other places. But it is always difficult for respondents to overcome the choice made by the applicant in relation to the management of the proceedings prior to trial.

11    The respondents are not prejudiced by the matter remaining in the Victorian Registry at present. This application might be renewed at any time in the future if circumstances change.

12    Consequently, the application for transfer should be refused.

Associate:

Dated:    5 April 2011