FEDERAL COURT OF AUSTRALIA

Truong Giang Corporation v Tung Mau Quach [2014] FCA 447

THE COURT ORDERS THAT:

1.    Pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) the proceeding be transferred to the New South Wales District Registry of the Federal Court.

2.    The mediation fixed for 11 June 2014 is adjourned to a date to be fixed by the New South Wales District Registry of the Federal Court.

3.    The costs of the respondent’s interlocutory application dated 4 April 2014 be costs in the cause.

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

REASONS FOR JUDGMENT

1    The respondent has applied to have this proceeding transferred to the New South Wales District Registry of the Federal Court of Australia. The application is made pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and r 2.02 of the Federal Court Rules 2011 (Cth).

2    This proceeding was commenced by the applicant in the fast track list in the Victorian District Registry. The applicant has alleged that the respondent has infringed its trademark, engaged in passing off and contravened ss 18, 29(1)(g) and 29(1)(h) of the Australian Consumer Law, contained in schedule 2 to the Competition and Consumer Act 2010 (Cth). The claims are disputed by the respondent which has filed a fast track response. There have been two directions hearings and the matter has been listed for mediation by a Registrar of the Victorian District Registry of the Federal Court on 11 June 2014.

3    At the first directions hearing, it was foreshadowed on behalf of the respondent that he would apply to have the proceeding transferred to New South Wales. The respondent, who is based in New South Wales where the alleged actionable conduct arose, contends that New South Wales is the most suitable place for the case to be conducted. The applicant opposes the transfer.

4    The Court has the power under s 48 of the Federal Court Act to direct, at any stage of the proceeding, that the proceeding be conducted or continued at a place specified in the order, subject to such conditions as the Court imposes. The principles applicable to an application for transfer were expressed in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, where the Full Court stated at 162:

The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. …

The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances.

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. … There is no onus of proof in the strict sense to be discharged by the parties seeking to conduct or continue the proceedings elsewhere. … The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the other hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.

The balance of convenience is important, but its weight must vary from case to case. 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, be defined more closely or precisely.

The Court must be satisfied that the transfer is justified in the particular circumstances, but, as the authorities indicate, the factors bearing upon whether a proceeding should be transferred will vary from case to case.

5    Although the respondent asserts that the choice of Victoria as the registry in which to initiate the proceedings was capricious, there is nothing in the evidence to support that claim. Rather, the evidence is to the effect that the applicant, which is a corporation registered in California in the United States of America, selected Victoria because its lawyers are located in Melbourne and the lawyers do not have an office in Sydney. However I am persuaded that there is sound reason to transfer the proceeding to New South Wales.

6    The evidence of the respondent is that he is a small business operator with limited funds available to defend this litigation. He submitted that the continuation of the proceeding in Victoria will impose an undue burden on him because he would incur substantial additional costs in travel and accommodation and because of the additional time that he would be away from his business. The applicant submitted that little or no weight should be given to these matters because there was no attempt to quantify the increased costs or to explain why his absence from his business would impose substantial hardship on him. The applicant further submitted that it was the respondent’s choice to instruct Sydney-based lawyers to conduct his defence and it is therefore appropriate that he bear any burden associated with that choice. It was also submitted that a transfer to New South Wales would merely shift the burden of additional travel costs to the applicant.

7    It is an inevitable consequence of the fact that the parties are not in the same jurisdiction that there will be additional costs and inconveniences to the party that is required to conduct their case interstate. However, the following matters indicate that the balance of convenience favours transfer to New South Wales.

8    First, the respondent’s business is located in Sydney whereas the applicant has no connection with Melbourne, apart from its Melbourne based lawyers.

9    Secondly, the cause of action arose in New South Wales.

10    Thirdly, the only witnesses that the respondent anticipates calling at the trial are himself and another person also a resident in New South Wales, whereas none of the witnesses that the applicant presently proposes to call are based in Melbourne. Materially, the applicant has indicated that it is likely to call witnesses from the United States of America, Queensland and New South Wales.

11    Fourthly, there was no suggestion that the transfer of the proceedings to New South Wales may adversely affect the applicant, apart from imposing the need for its Melbourne based lawyers to travel to Sydney, which is a neutral factor.

12    Fifthly, the proceeding is at an early stage and as a matter of case management, a transfer at this stage will not be disruptive of the orderly progress of the case, other than to obtain a new date for the mediation, nor would it require duplication of work.

13    Accordingly, the application for transfer will be granted.

14    The respondent sought his costs on an indemnity basis in the event that he succeeded, on the basis that there was no reason why the applicant did not consent to the transfer and that it should have done so bearing in mind its obligations under ss 37M and 37N of the Federal Court Act. That application is refused as the applicant’s opposition to the transfer did not lack merit and I do not consider on the material before me that there was any breach of ss 37M and 37N of the Federal Court Act. The appropriate order is that costs be in the cause.

Order

1.    Pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) the proceeding be transferred to the New South Wales District Registry of the Federal Court.

2.    The mediation fixed for 11 June 2014 is adjourned to a date to be fixed by the New South Wales District Registry of the Federal Court.

3.    The costs of the respondent’s interlocutory application dated 4 April 2014 be costs in the cause.

Associate:

Dated:    9 May 2014