FEDERAL COURT OF AUSTRALIA

Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd [2013] FCA 505

THE COURT ORDERS THAT:

1.    The relief sought in paragraph 7 of the respondents’ Interlocutory Application filed 15 May 2013 be refused with costs.

2.    Within 7 days, the applicant provide security for costs in the sum of $60,000.00 by bank guarantee or such other form as is acceptable to the Registry of the court, such security to cover the respondents’ costs of this proceeding down to and including the giving of discovery;

3.    Pending the provision of security as aforesaid, the proceeding be stayed.

4.    The respondents file and serve their Fast Track Response or Responses within 14 days.

5.    The proceeding be listed for further directions at 9.30 am on 14 June 2013.

6.    To the extent that the respondents’ Interlocutory Application filed 15 May 2013 relates to security for costs in respect of stages of this proceeding subsequent to the giving of discovery and to the extent that that application relates to the question whether the proceeding should continue under the Fast Track Directions of the court, the application be adjourned to 9.30 am on 14 June 2013.

7.    Any affidavit or affidavits upon which the applicant proposes to reply in connection with the matters referred to in the previous order be filed and served by midday on 12 June 2013.

8.    Save as mentioned above, costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding was commenced in the Fast Track List in the Victorian Registry of the court on 3 April 2013. Today is the first occasion upon which it has been listed for directions. The respondents have applied, by Interlocutory Application filed on 15 May 2013, for the proceeding to be transferred to the New South Wales District Registry of the court pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth). The broad discretion which the court is given under that section must now be exercised conformably with the purposes referred to in ss 37M and 37N of that Act. In the circumstances of the present case, I do not understand it to be said that those provisions introduce considerations which are antagonistic with the traditional discretionary ones which the court has taken into account on occasions such as the present. Those considerations were referred to by Dodds-Streeton J in Australian Drilling Services Proprietary Limited v Buru Energy Limited [2010] FCA 933, and in the authorities to which her Honour referred in that case. There is no contest about the relevance or application of those considerations.

2    The applicant proceeds on three principal causes of action. Its first cause of action is based upon a contract made between it and the first respondent in 2000. That contract was made in Victoria at a time when the first respondent was a Victorian company. The contract contains a choice of law clause and an exclusive choice of forum clause in the following terms:

This agreement will be governed by and construed in all respects according to the law of Victoria and the parties agree to submit to the exclusive jurisdiction of the Victorian courts.

3    The second cause of action is one which involves the intentional tort of interference in contractual relations. The conduct said to constitute that interference appears to have occurred – if it occurred at all – in New South Wales.

4    The third cause of action involves allegations of unconscionable conduct contrary to the Trade Practices Act 1974 (Cth), and, alternatively, the Fair Trading Act 1999 (Vic). On what presently appears, if there was conduct which was arguably unconscionable, it took place in New South Wales.

5    Since the making of the contract in 2000, the ownership of the first respondent has changed, and its registered office and place of business are now in Sydney. The individual who is primarily responsible for giving instructions on behalf of the applicant is resident in Melbourne. On the other hand, so far as may presently be appreciated, all of the witnesses who might be called in the case are resident in Sydney.

6    The circumstances which would make it more convenient for the case to be heard in Sydney rather than Melbourne, or vice versa, are fairly evenly balanced. The fact that the applicant’s own registered office is now in Sydney is perhaps neutralised by what the applicant says is the circumstance that it does not trade. Whilst the witnesses will be obliged to come from Sydney if the case is to stay in the Victorian Registry, nonetheless it has not been suggested that there are likely to be many witnesses called in the proceeding, and I am disposed to the view that the requirement for witnesses to be brought from interstate, in an age in which interstate travel is both convenient and relatively inexpensive, is not – at least in the context of a commercial proceeding such as this – to be seen as a handicap of substance for the respondents. I have indicated that, so far as the case is based upon allegations of unlawful conduct, or conduct in breach of contract, that conduct appears to have occurred in New South Wales. But, on reflection, that is probably no more than an observation which might be made about the nature of the applicant’s case, than a factor of significance with respect to location in a court having a national jurisdiction.

7    As I said, the question is finely balanced, but ultimately I am disposed to think that the respondents have not done enough to displace the applicant’s choice of the Victorian Registry as the place to commence and thereafter to prosecute this proceeding. I do place considerable store by the circumstance that that choice was a legitimate one having regard to the place of residence of the individual giving instructions to the applicant’s solicitors. In a commercial proceeding with a number of different dimensions such as this, and particularly in relation to what is said to be a company which does not trade – inferentially a company for whom a limited number of people might speak – I think it is important that the applicant should not be deprived of the forensic convenience, and perhaps momentum, which may be assumed to flow from being able to conduct the proceeding in a registry of the court which is most proximate to the place of residence of the main person concerned on its behalf. Although counsel for the applicant has not pressed this consideration upon me as such, it is also to be noted that the solicitor – by which I mean the actual flesh and blood practitioner who is most familiar with the applicant’s affairs and with the circumstances surrounding the need for this litigation – is based in Melbourne.

8    These are not circumstances which are in any way conclusive, of course, but, in a finely balanced case, I have ultimately found them a sufficient justification for the applicant’s choice of this registry and, although, as has been pointed out by counsel for the applicant, there is no question of onus involved under s 48, the respondents do have the task of displacing the applicant’s choice of registry. For the reasons I have given, I am not persuaded that they have done so in this proceeding.

9    To the extent that the Interlocutory Application of 15 May 2013 seeks a change of venue, it will be refused.

Associate:

Dated:    31 May 2013