Federal Court of Australia

Russell v S3@Raw Pty Ltd (Proper Place) [2023] FCA 1012

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The second and third respondent pay the applicant’s costs of and incidental to the interlocutory application.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    By an interlocutory application filed on 9 August 2023, the second and third respondent sought an order pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth) that the proceeding be transferred to the Victoria Registry, and that the proper place for further hearings be the Victoria Registry. The second and third respondents also sought costs of the application.

2    This matter commenced by originating application filed on 7 November 2022 whereby the applicant sought damages against the respondents for contravention of s 18 and 37(2) of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth), as well as for breach of contract with respect to the first respondent. The applicant also sought damages due to allegedly defamatory statements published on Instagram by the first and third respondents.

3    An interlocutory hearing was held on 22 August 2023, where I ordered that the interlocutory application be dismissed. These are the reasons for that decision.

LEGISLATIVE PROVISIONS

4    Rule 2.02 of the Rules provides:

2.02 Transfer of proceeding to another place

A party may apply at the proper place for an order that the proceeding be transferred to another place.

Note 1: Proper place is defined in the Dictionary.

Note 2: See section 48 of the Act.

5    The term “proper place” is defined in Schedule 1 of the Rules as:

(a) the place where the proceeding is started; or

(b) if the proceeding is transferred to another place—the other place, from the date of transfer.

6    Section 48 of the Act provides:

48 Change of venue

(1) 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.

(2) Subject to section 80 of the Constitution and sections 68C, 70 and 70A of the Judiciary Act 1903, subsection (1) extends to criminal proceedings.

7    Section 37M of the Act states:

37M The overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

SUBMISSIONS

8    By his affidavit sworn on 1 August 2023, the third respondent deposes that the following are reasons which support transferring this proceeding to the Victorian Registry:

    This proceeding has no connection to Queensland.

    The proceeding was commenced in Queensland due to the location of the applicant's father and the solicitors representing the applicant.

    The applicant resides in Melbourne, and has done so since the commencement of these proceedings.

    The first respondent was incorporated in Melbourne, with its registered office and principal place of business being also located in Melbourne.

    The second and third respondents were residents of Melbourne until June 2021, and both of their addresses for service are located in Melbourne.

    The location of the former business of the first respondent, which is the subject of this dispute, was located in Melbourne.

    The 12 witnesses intending to be called by the third respondent are all Melbourne residents.

9    The second respondent made submissions which can be summarised as follows:

    The proceeding has no connection to any location in Australia, other than Melbourne, by reason of the location of the businesses in dispute, the place in which the first respondent was incorporated and where its business address is, the services for address for the second and third respondents are in Melbourne, and the applicant resides in Melbourne.

    All witnesses likely to be called reside permanently in Melbourne.

    It is contended that Mr Stephen Russell, who resides in Queensland, would not be a key witness in the proceeding due to his lack of involvement in the dealings between the applicant and respondents.

    There has been limited case management since the second and third respondents were served and started engaging in the proceedings, which has occurred since June this year. There is little advantage in continuity of case management when what has previously occurred was primarily the dismissal of the applicant’s interlocutory application, and issues relating to service of the respondents.

    The residency of the second and third respondents is irrelevant, in circumstances where if they were to attend in person at any point in this proceeding, it would be from Melbourne.

    The location of the applicant’s solicitor and counsel is irrelevant.

10    The applicant opposes the interlocutory application for the following reasons:

    The proceeding has been case managed in Queensland since it was lodged.

    The respondents have delayed in bringing a transfer application, which was foreshadowed in November 2022.

    Given the second and third respondent reside overseas, it is likely any future participation will be via video-link, and electronic filing of documents can occur internationally. There is no difficulty in the second and third respondent appearing via video-link to the Queensland Registry.

    The applicant’s solicitor and counsel are located in Queensland. While this is not determinative, it is relevant as the applicants are entitled to engage trusted legal representatives.

    Mr Stephen Russell is located in Queensland, who may be a key witness for the applicant.

    No affidavit evidence has been filed for the trial, therefore the exact identity of witnesses and their locations is speculative at this point in time.

    Appropriate orders can be made after discovery and evidence has occurred if Victoria is the most appropriate location for the trial. 

CONSIDERATION

11    Subject to s 37M of the Act, the powers under r 2.02 and s 48 is unfettered, and should be exercised flexibly having regard to the particular circumstances of each case. There are a number of factors that may be relevant, including location of witnesses and the parties, where the cause of action arose, cost of travel and convenience of the Court.

12    In National Mutual Holdings Pty Ltd v Sentry Corp (1988) 83 ALR 434 at 441-442, the Full Court of this Court (Bowen CJ, Woodward and Lockhart JJ) said with respect to the test to apply when considering the proper place:

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. As the power may be exercised subject to conditions, the court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases.

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. A party commences a proceeding by filing an application in a particular registry of the court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. 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 one 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, in our opinion, be defined more closely or precisely.

13    In Andrew & Frewin Pty Ltd v Arrow Ltd (unreported, Sweeney, Davies and von Doussa JJ, 6 June 1990), the Full Court of this Court agreed with the test specified in Sentry Corp.

14    In Cycles & Wheelman Pty Ltd v Beltech Corp Ltd (1988) 80 ALR 279, Gummow J at 281-282 said the following with respect to the proper place of a proceeding:

…It is not, in my view, simply a question of the court locating the balance of convenience, because the court must be satisfied by the applicant that there be a change in the status quo and in the identity of the “proper place” and that transfer be ordered. Nor, contrary to some of the submissions made this morning, is much guidance to be derived from cases in other jurisdictions, particularly those jurisdictions lacking the national character of this court, and those providing for trial by jury of civil claims.

There is in my view no useful purpose served, and some risk of mischief, by seeking to place upon the discretion of the court in disposing of applications such as the present the fetters of any precise verbal formula. Particularly is this so where the matter is one of practice and procedure: see generally Jess v Scott (1986) 12 FCR 187 ; 70 ALR 185 . In that report (FCR at 196; ALR at 194), the Full Court indicated that a discretionary power given by the rules of court should not itself become entangled in a web of rules spun out of the discretionary decisions of the court. The Full Court continued: “Decisions are not authorities upon the facts but upon principle; the facts must be regarded as unique to the particular case.”

I do not read the decisions in the cases referred to this morning (some of which appear to have been concerned primarily with applications under O 30, r 6(2), to change the place of trial to other than the “proper place”) as purporting to impose such a fetter. I refer to Hodder v Australian Workers’ Union (1985) 4 FCR 541 ; Jacobs v Claudius Enterprises Pty Ltd (1985) ATPR 40-511 and TVW Enterprises Ltd v Magna-Techtronics (Aust) Pty Ltd (Federal Court of Australia, 20 February 1987, unreported); ; (1987) ATPR (Digest) 46-022 .

15    Consideration of the proper place of a proceeding is made at the time the application is made, and whether there is a “sound reason” to change the “status quo”: Sentry Corp at 162; Beltech Corp at 281. This proceeding was commenced in the Queensland Registry. All case management and interlocutory hearings thus far have been conducted from the Brisbane Commonwealth Law Courts. The second and third respondent have not appeared at any case management or interlocutory hearing prior to 22 August 2023, primarily due to ongoing issues as to service of the originating application. The third respondent filed a notice of address for service on 13 July 2023, providing an address in Melbourne. The second respondent has not filed a notice of address for service, however specifies a Melbourne address at the footer of his defence. I do note, however, that in numerous communications to the Court the second and third respondent have made it clear that they reside overseas, and no longer live in Melbourne or Australia.

16    Given the matter has proceeded for over nine months from the Queensland Registry, one needs to question “Why should this change?”: Sentry Corp at 162. It must be acknowledged that since Sentry Corp was decided, there have been significant technological advancements in this Court, particularly with respect to the online filing of documents, and ability to conduct hearings remotely. Consistent with these developments, arrangements have been made for the second and third respondents to appear via audio-visual link at the interlocutory and case management hearing. It is therefore to be expected that the second and third respondents will continue to appear via audio-visual link in any case management or interlocutory hearings for the foreseeable future.

17    The second and third respondents foreshadowed that a number of the witnesses they intend to call at trial reside in Melbourne. As no affidavit evidence has yet been filed, the likely identity, number and location of witnesses is currently speculative. The same is true as to whether Mr Stephen Russell will be a witness at the trial. In saying that, I acknowledge that it is likely a number of witnesses will be Melbourne-based as that is where the business the subject of these proceedings is based. However, the question as to where the trial should be conducted is a separate question from that which goes to the proper place of the proceeding: Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616 at [12] (Lee J).

18    Mansfied J in Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee (2007) 156 FCR 444; [2007] FCA 22 at [29] stated that, generally, little weight should be given to the location of a parties representatives in considering the proper place of a proceeding. O’Loughlin J in Australian Competition and Consumer Commission (ACCC) v Pauls Ltd [2002] FCA 71 at [13] acknowledged that an ongoing relationship with legal advisors may be attributed some weight. Crennan J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2004] FCA 302 at [10] said that it is a factor that is required to be weighed in the balance. It is the free and unfettered right of a litigant to appoint legal representation from whichever State or Territory they so choose. The fact that the applicant's legal representatives and father reside in Queensland is unremarkable, and choosing to commence proceedings in the location of trusted legal advisors, as well as where a potential witness is located, is certainly not capricious: British American Tabacco Australasia Ltd v Taleb (No 2) [2013] FCA 34 at [23] (Dodds-Stretton J); Austal Ships at [9]-[10].

19    It seems that the balance of convenience, at least with respect to travel arrangements for pre-trial processes, weighs in favour of the proper place remaining in Queensland in circumstances where the applicant’s representatives reside in Queensland, and where the second and third respondent are likely to participate remotely for the foreseeable future. No discovery or evidence for trial has been filed, therefore the identity, number and location of potential witnesses at this stage is speculative. Furthermore, given the extensive involvement I as the docket judge have had in this matter thus far, it is certainly convenient to the Court for the matter to remain in Queensland, and is consistent with the quick, inexpensive and efficient resolution of disputes in this Court pursuant to s 37M of the Act.

20    That is not to say that the Court is not open to conducting the substantive hearing in Melbourne. The applicant concedes, and I accept, that the proceeding has a substantial connection to Melbourne. It is, however, premature to make any order as to the location of the trial: Australian Competition and Consumer Commission (ACCC) v Australian Egg Corp Ltd [2014] FCA 1010 at [6](b) (White J).

CONCLUSION

21    Accordingly, I am not persuaded that the overarching purpose of s 37M of the Act and the balance of convenience weighs in favour of changing the proper place of the proceeding. As I have said, this does not preclude further consideration at some later date should the status quo change, nor consideration, closer to any potential hearing date, as to the most suitable location of said hearing.

22    The respondent’s interlocutory application is dismissed. The second and third respondent must pay the applicant’s costs of and incidental to the interlocutory application.

Associate:

Dated:    24 August 2023