Federal Court of Australia

Neilsen v Neilsen [2021] FCA 76

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be listed for a case management hearing at 9.30am on 12 February 2021.

2.    The parties have leave to approach the Associate to Justice Lee in the event that all parties consider it appropriate to vacate the case management hearing referred to in Order 1, in which case the proceeding will be listed for a case management hearing at 9.30am on 26 February 2021.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

LEE J:

1    This is the first case management hearing of a proceeding commenced in the Commercial and Corporations National Practice Area (Corporations and Corporate Insolvency sub-area).

2    The first plaintiff, Mrs Neilsen, is the mother of the second plaintiff and of the first defendant. In broad terms, it is claimed that the solicitors who prepared the last will of Mrs Neilsen’s late husband breached their fiduciary duties by accepting and acting on instructions from the son who was in a position of conflict.

3    It is claimed that the son, as the sole director of the third to thirteenth defendants (Neilsen Group) has caused companies within the Neilsen Group to pay excessive management fees, benefits, drawings and reimbursements to his benefit and has further caused those companies to make uncommercial loans. The plaintiffs claim that the conduct of the son has been oppressive to, and unfairly prejudicial to, or unfairly discriminatory against, the members of companies within the Neilsen Group and the beneficiaries of the Neilsen family trusts.

4    The plaintiffs primarily seek orders under s 233 of the Corporations Act 2001 (Cth), including that the first defendant be removed as a director of each of the Neilsen Group companies, orders for winding up and equitable compensation.

5    The matter was initially before Markovic J in her capacity as Commercial and Corporations Duty Judge, and on 17 December 2020 orders were made granting leave to the plaintiffs to commence the proceeding by filing an originating process and statement of claim. It was subsequently allocated to my docket by the National Operations Registrar.

6    The evening before the first case management hearing, my Associate received an email enclosing draft orders sought by consent of the parties inclusive of an order that pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (Act) this proceeding be transferred to the Queensland Registry of the Court.

7    For the reasons that follow, I refuse that application.

8    I start from the premise that the proceeding has a clear connexion to the State of Queensland. All relevant dealings between the parties occurred in the State of Queensland. Further, apart from this, there were three further matters that were called in aid in support of the application for the transfer of the proceeding to the Queensland Registry. I will identify and deal briefly with each.

9    The first is that in the statement of claim at [49] and following, there is a contention that one aspect of the impugned conduct of the son involved a breach of state environmental laws, which exposed a Neilsen Group company to the possibility of penalties under Queensland legislation. This has no substance. The alleged exposure will be essentially a matter of fact and to the extent that it involves any construction of the relevant statute, this causes no difficulty favouring transfer.

10    Secondly, it is said that in relation to the knowing participation case advanced against the solicitors, there are some decisions of the Queensland Court of Appeal which bear upon the duties of solicitors which may be of relevance. Again, this argument is not a consideration which militates in favour of transfer of the proceeding. As has been clear since at least the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (at 563–4 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ), there is but one common law of Australia and there is also one body of applicable equitable principles. Any decision of an intermediate Court of Appeal in Queensland will be relevant or irrelevant because of the underlying merits of the case, not because the Court is dealing with the matter in either the New South Wales or Queensland Registries.

11    Thirdly, there are allegations of a sale of undervalue of various properties located in Queensland. Again, this is not a matter of any significance and it is likely that any competing issues as to land value at material times will be resolved through the use of the referee procedure.

12    This last matter was relevant to the overarching submission that was made by the defendants that the matter could “more quickly and more cheaply” if transferred. In Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2017] FCA 1616, I observed as follows (at [9]–[11]):

Section 48 of the Federal Court of Australia Act 1976 (Cth) (FCAA) is the source of the power conferred on the Court to transfer a proceeding commenced in one Registry of the Court to another place. It is well established that the relevant discretion is to be exercised flexibly, the ultimate test being “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”: see National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 per Bowen CJ, Woodward and Lockhart JJ.

It was said in Sentry Corporation (at 162) that the “power conferred on the Court or a judge by s 48 is in terms wholly unfettered”. This is not now strictly accurate by reason of legislative changes since the decision in Sentry Corporation was delivered. In particular, s 37M(3) of the FCAA provides that any civil practice and procedure provisions must be interpreted and applied, and any power conferred by them must be exercised or carried out, in a way that best promotes the overarching purpose. In accordance with the dictates of s 37M(1) of the FCAA, the overarching purpose is, of course, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

This is a national Court. It is not a collection of federated courts. The National Court Framework was a fundamental reform of how the Court operates, its key purpose being to facilitate the Court operating “as a truly national and international Court”. As is now well known, the Court's workload is now organised by reference to National Practice Areas and matters are allocated nationally, focusing on responding to the needs of the case and the parties. Considerations which loomed large in earlier transfer cases (decided at an earlier stage of the Court’s evolution) now need to be assessed by reference to these significant changes. Apart from the introduction of Part VB of the FCAA and the changes wrought by the National Court Framework, in exercising the broad discretion conferred by s 48 of the FCAA, relevant considerations in transferring cases include the increasing ability of commercial parties to have access to economical airfares, and the increasingly national character of the legal profession.

13    If anything, the considerations that I referred to in 2017 have greater force now than they had then. In particular, it is likely that the interlocutory case management of this case will occur through the use of the Microsoft Teams technology. If it is possible to have a final hearing in person, then, on the material that I have thus far seen, it is highly likely that the appropriate place for trial will be in Brisbane but this does not presently necessitate a transfer of the proceeding to the Queensland Registry.

14    The ultimate question is whether or not a transfer will best promote the overarching purpose and allow this matter to get on for trial and be resolved as quickly as possible? The delay in the matter going back to the National Operations Registrar for reallocation and for case management to occur on another Judge’s docket is likely cause at least some delay and to be inimical to facilitating the overarching purpose.

15    The principles said to be relevant to determining s 48 applications were developed at a much earlier stage of the evolution of this Court. It cannot be stressed enough that this is now a truly national Court which now organises itself on a national basis. Accordingly, the application for transfer of the proceeding is dismissed. Given that all parties participated in this proposed course, there will be no orders as to costs.

Associate:

Dated:    8 February 2021

SCHEDULE OF PARTIES