Federal Court of Australia

Oberix Group Pty Ltd v Atkinson [2021] FCA 1259

ORDERS

THE COURT ORDERS THAT:

1.    The first defendant's interlocutory application filed on 9 June 2021 is dismissed.

2.    The first defendant must pay the plaintiff's costs of the interlocutory application in any event.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The plaintiff, Oberix Group Pty Ltd, commenced this proceeding in the Western Australian registry of this court on 13 November 2020. By an interlocutory application, the first defendant, Mr Atkinson, seeks the transfer of the proceeding to the Queensland registry of the court. The second defendant, Mr Slade, supports the application. Oberix opposes it.

The proceeding

2    Oberix is in the business of designing, supplying and installing equipment for the automatic operation of various systems in commercial and industrial buildings, including security systems. The defendants are former employees of Oberix. The company alleges that they breached various contractual, equitable and statutory duties owed to it. The alleged breaches are said to have occurred after Mr Slade resigned from his employment with Oberix and went to work for a competitor, Intelligent Building Solutions. Oberix claims that Mr Slade started providing services to a contractor working on sites at Adelaide Street, Brisbane and Anne Street, Brisbane, where Oberix had supplied and installed building management systems and was performing maintenance and systems troubleshooting work. It is alleged that Mr Atkinson, who at that time was still an employee of Oberix, gave Mr Slade access to Oberix's systems in order to enable him to remotely access the building management system for the Adelaide Street site. It is also alleged that Intelligent Building Solutions took over all the building management system work for the Adelaide Street site and began performing work on the Ann Street site.

3    It is not necessary to describe every cause of action which Oberix says arises against the defendants as the result of this alleged conduct. Oberix seeks declarations of various breaches by, and damages against, both defendants. It appears from particulars of damages filed that up to $2,474,775 is claimed.

4    It is also unnecessary to describe the basis on which the defendants resist Oberix's claims in any detail. The defendants deny any breach, and traverse most of Oberix's factual allegations. It is enough to say that if the matter proceeds to trial, the scope of the forensic contest between the parties will be wide and testimony from multiple witnesses, as well as documentary evidence, will be required.

5    The originating process was accompanied by affidavits from four witnesses who deposed as to the circumstances of the alleged breaches. Pleadings have been filed. Discovery and inspection has occurred. The matter has been set down for a mediation before a registrar of the court on 11 November 2021. It has been provisionally listed for trial for 12 to 16 December 2022. There is likely to be a need for further directions about lay and possibly expert evidence. It will be appropriate to make those directions after the mediation, if it is unsuccessful.

Basis of the interlocutory application for change of venue

6    Mr Atkinson seeks the transfer of the proceeding under 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.

7    The essential factual basis on which Mr Atkinson seeks the transfer can be summarised as follows:

    Oberix's head office is in Melbourne.

    Oberix's sole director, Trevor Owen, and its National Services Director, Dale Gartshore, live in Melbourne and work from the head office.

    The two other witnesses who have sworn affidavits relied on by Oberix live in or near Brisbane.

    The defendants, Mr Atkinson and Mr Slade, both live in Brisbane.

    Mr Atkinson has not confirmed who he will call as witnesses, but he expects that they will all be based in Brisbane, including any expert witnesses.

    Mr Slade expects to call four witnesses (not including himself), all of whom live and work in Brisbane.

    As is apparent from the description of Oberix's allegations I give above, the claim relates to the employment of the defendants at Oberix's Brisbane office, and concerns two sites in Brisbane. The post-employment conduct complained of is said to have taken place in Queensland.

    The competitor I have mentioned, Intelligent Building Solutions, has operations in Queensland.

8    Mr Atkinson submits that the only apparent explanation for the proceeding having been commenced in Western Australia is that Oberix's solicitors are based there. He says that the court should conclude that the choice of Western Australia is capricious, so that the court should give no weight to the fact that the proceeding was originally filed there: see National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162. He further says that other reasons which Oberix gives for wanting the proceeding to be located in Perth (see below) are insubstantial.

9    The defendants (who are separately represented) each have solicitors based in Brisbane. The defendants earned modest salaries in their employment with Oberix. Mr Atkinson submits that if the trial is held in Perth it will be expensive and inconvenient to fly witnesses, solicitors and counsel to Perth. That will be compounded if COVID-19-related restrictions require quarantine in Perth beforehand. He submits that it would be unfair to hold the trial partly in Perth (where Oberix's solicitors and counsel would be able to appear in person) and partly by video (for the defendants and their legal representatives). Holding the trial in Brisbane will minimise the need for people to travel across state borders if the pandemic means that such travel continues to be problematic. Mr Atkinson also submits that inspection of subpoenaed material in Brisbane is more appropriate because that is where the solicitors for two of the three parties are based.

10    Mr Slade filed brief written submissions and an affidavit which supported Mr Atkinson's position on the interlocutory application without adding to it in any appreciable way. In order to save costs, the court gave Mr Slade leave not to appear at the hearing of the interlocutory application.

Basis for opposition to the change of venue

11    Oberix relies on an affidavit affirmed by its sole director, Mr Owen, on 16 July 2021. The affidavit says that, as well as its offices in Queensland and Melbourne, Oberix relevantly has offices in Perth and Sydney.

12    According to Mr Owen, Oberix's Perth office is currently understaffed, and the company is 'undertaking an aggressive recruitment campaign to build up its service and project teams in Perth'. In the affidavit affirmed on 16 July 2021, Mr Owen said he was required to travel to Perth regularly between July 2021 and the end of the year to conduct interviews for potential candidates. He also said that after a restructuring of the Sydney and Melbourne offices which is currently in progress, he would be working on a restructuring of the company's offices in Perth and South Australia. He also said that he regularly travels to Perth as he has family who live there. For those reasons, Mr Owen says, 'it would be very convenient and more convenient for me and Dale Gartshore to travel to Perth for any Court required appearances than Queensland'.

13    Mr Owen also acknowledges that the above has been affected by COVID-19, and says that as a result of the pandemic, he and Oberix's executives and staff would have little or no difficulty in attending court by video conferencing, if that became necessary or was convenient.

Principles

14    In Sentry at 162, Bowen CJ, Woodward and Lockhart JJ said, '[t]he 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'. Their Honours held that while there was no onus of proof in the strict sense, 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'.

15    I gratefully adopt the following summary of the settled approach to considering applications of this kind which White J gave in Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010 at [6]:

(a)    there is no onus of proof in the strict sense to be discharged by the party seeking to have the proceedings continued elsewhere: Sentry at 162;

(b)    the national character of the court, including its capacity to put in place flexible arrangements for the taking of evidence and the receipt of submissions, is pertinent: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 at [16], [20]; Mortimer v Opes Prime Stockbroking Ltd (Administrators Appointed) (in liq) [2009] FCA 227 at [15]. As French J observed in Lamb v Hogs Breath Co Pty Ltd (No 1) [2007] FCA 49 at [9]:

So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that.

(c)    The place of residence of the parties and their witnesses, the expense to the parties, the place where the events giving rise to the applicant's cause of action, and the convenience of the court itself are relevant matters: Sentry at 162;

(d)    The balance of convenience is a very relevant, but not decisive, consideration: Sentry at 162.

(e)    Any difference in the rights of the parties under the relevant law of different States or Territories, to the extent that these can be identified and assessed at the time the court considers the application, may be material: Sentry at 163;

(f)    Ultimately, the discretion is to be exercised 'having regard to considerations of sound case management, the national character of the court and practical considerations including the convenience of the parties': Virgin Mobile at [16].

16    Consideration (e) is not relevant here, as no party submitted that the procedural or substantive laws of the various jurisdictions made any difference in this case.

Disposition

17    I accept that on present indications, the most convenient location for trial is likely to be Brisbane. Two of the parties are based there. The relevant events appear to have occurred there. Eight of the 10 known witnesses (if the defendants are included) are based in Queensland.

18    I say that this is on present indications, because much may change between now and the trial. For example, new witnesses may emerge (including potentially expert witnesses). The course of the pandemic over the last 18 months shows that predicting the course of the next 18 months is fraught with uncertainty. So I express no firm view about where the trial should be held in December 2022. But at the moment, Brisbane does appear to be the logical and appropriate venue.

19    I also agree with Mr Atkinson's submission that the reasons given by Mr Owen for wanting any hearings to be in Perth are insubstantial. His evidence does not indicate that those reasons will still apply by the time of the provisional listing of the trial in December of next year (other than perhaps his very general evidence about visits to family members). And the plans he described in his affidavit in July 2021 must have already been thrown into disarray by the significant restrictions on travel from Victoria to Western Australia which have been in place since that time as a result of COVID-19. Also, nothing is said about why it might be convenient for Mr Gartshore to come to Perth and nothing is said about Oberix's other witnesses at all. The evidence resolves to an expression of preference by one individual: Mr Owen. It is unpersuasive.

20    Also, Mr Owen makes no attempt to explain why Western Australia was chosen as the registry when the proceedings commenced in November 2020. I infer that it was because the solicitors Oberix retained for the proceedings are based in Perth. I place no weight on Oberix's choice of venue for the purposes of this interlocutory application. The venue of the proceeding should not be dictated by the convenience of the solicitors and counsel where that venue has no substantial connection with the subject matter of the dispute or the parties or their witnesses: Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCA 22; (2007) 156 FCR 444 at [29] (Mansfield J). This proceeding has no such substantial connection here. Since I give Oberix's choice of venue no weight, there is no need to determine whether that choice was capricious, as submitted by Mr Atkinson.

21    Nevertheless, the interlocutory application will be dismissed. There are two reasons for that. The first is that it is premature. The matter will be mediated on 11 November 2021. The mediation is being ordered to be conducted by a registrar of the court based in Brisbane and will be conducted at the place or places, and in the mode, that the registrar determines is appropriate. That is an example of the flexibility the court has to accommodate the different locations of the parties and others.

22    The proceeding may settle at mediation. If it does not, the parties and the court will have over a year afterwards to determine the appropriate place (or places) for the trial. It is in practice desirable to make that decision closer to trial, especially when COVID-19 can change the situation rapidly and dramatically.

23    It is not at all clear that any other substantial interlocutory disputes will require hearings before trial, but if they do, the fact that parties and legal advisors are in different states, as well as the pandemic, mean that whatever formal venue of the proceeding, some compromise as to the location and mode of hearing will be required.

24    However, modern technology substantially ameliorates the difficulties this can cause. All documents are filed with the court electronically, which can be done from anywhere in the world. COVID-19 has accelerated the adoption of video conferencing technology by the courts. This court, legal representatives and, to an extent litigants, have become more or less adept at conducting hearings by video, where that has been necessary to deal with the many restrictions that have come with the pandemic or to otherwise overcome the tyranny of distance. That is not to suggest that holding interlocutory hearings by video, much less trials, has somehow become preferable or the new 'default option' as to the manner in which the court will administer justice. It is simply to recognise a tool which can be used in an appropriate and pragmatic way to overcome obstacles posed by disease and distance.

25    Mr Atkinson's submission about the venue for the return of subpoenas is without merit. Rule 24.13(7) of the Federal Court Rules 2011 (Cth) provides that the place specified in a subpoena for production may be the court, or the address of any person authorised to take evidence in the proceeding as permitted by the court. Hence subpoenas can be made returnable in whatever registry is most convenient. The submission also overlooks that the convenience of the subpoena recipient will be an important factor in that regard.

26    In light of those matters, to require the parties and the court to expend resources to determine the issue of the location of the trial by way of a contested application now is simply unnecessary. It is a potential waste of those resources, which is inconsistent with the overarching purpose of the civil practice and procedure rules found in s 37M of the Federal Court Act. It is to be discouraged.

27    Mr Atkinson submitted that it was appropriate for him to bring this application promptly in order to give clarity to the parties about the future conduct of the proceeding, and he said that he would have been criticised if he had left the application too late. However, the appropriate time for bringing an application of this kind, and what time would be too late, depends on all the circumstances that I have outlined. There is no presumption, guideline, or rule of thumb in cases such as the present which requires an applicant for an order for a change of venue to bring the application as soon as possible after the commencement of the proceeding or any other particular step. For reasons I have given, the convenient time to determine the appropriate venue of the trial is likely to be closer to the trial, allowing, of course, for the need to give everybody concerned adequate advance notice so that they may arrange their affairs accordingly.

28    The second reason why the interlocutory application will be dismissed is that the main premise upon which it is based is incorrect. I refer to the proposition, implicit in Mr Atkinson's submissions, that if the proceeding remains in the Western Australian registry, then the trial will necessarily be held in Western Australia.

29    The Federal Court of Australia is a truly national court: see Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616 at [11] (Lee J). In 2016, the court adopted a National Court Framework and since then has organised its work under what are called National Practice Areas. Matters commenced in one State are frequently allocated to the docket of a judge based in a different State. That has all been publicised widely in the profession.

30    If (closer to December 2022) it appears that the appropriate venue for the trial is Brisbane, the trial will be held in Brisbane. Subject to any appropriate exceptions identified in accordance with s 47A and s 47B of the Federal Court Act, witnesses, counsel, solicitors and the judge will be in Brisbane. If the pandemic or some other unforeseen circumstance prevents the trial from taking place in person, appropriate measures will need to be taken based on the circumstances at the time. In any event, the fact that the proceeding has been commenced in the registry of a particular state will be of no moment.

31    Therefore, even though I place no weight on the choice of Western Australia as the place in which the proceeding is commenced, I see no sound reason to direct that the proceeding as a whole is to be conducted in Queensland from now on.

32    The application will be dismissed. It follows from the reasons that I have given that Oberix should have its costs of the interlocutory application. I do not consider that Mr Slade should bear those costs; it was Mr Atkinson's application, and Mr Slade did not appear at the hearing, and the modest support he gave the application did not increase costs in any way.

33    Mr Atkinson submitted that costs should be in the cause or reserved because, although he had been unsuccessful in the application as a whole, he had achieved some success in establishing that Brisbane was likely to be the appropriate venue for trial and so the application had some utility. But as is evident from my reasons, I consider that the venue of the trial can and should be determined closer to trial when the circumstances can be predicted with more certainty, and I am unpersuaded that this would have required any interlocutory application had it been left until then. Costs will follow the event in the usual course.

Associate:

Dated:    15 October 2021