Federal Court of Australia

Russell v S3@Raw Pty Ltd (No 4) [2026] FCA 771

ORDERS

THE COURT ORDERS THAT:

1. The second and third respondents’ interlocutory application filed on 9 April 2026 is dismissed.

2. The second and third respondents pay the applicant’s costs of the interlocutory application filed on 9 April 2026.

3. By 10 July 2026, the parties advise the Associate to Justice Meagher of their availability to attend a case management hearing on or after 13 July 2026.

4. The proceeding be listed for a case management hearing on or after 13 July 2026 on a date to be advised.

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 April 2026, the second and third respondents in this proceeding seek, pursuant to s 48(1) of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth), or alternatively r 5.04(3), item 34, of the Rules, that the proceeding be transferred from the Queensland District Registry to the Victoria District Registry of the Court. An interlocutory hearing was held before me on 10 June 2026. The second and third respondents have previously sought that the proceeding be transferred to the Victoria District Registry. My reasons for dismissing that application are contained in the judgment in Russell v S3@Raw Pty Ltd (Proper Place) [2023] FCA 1012 (Russell (Proper Place)). For the following reasons, this interlocutory application is also dismissed.

background

2 This matter was commenced by an originating application and statement of claim filed on 7 November 2022. The most recent forms of these documents are a further amended originating application and second further amended statement of claim filed on 16 April 2025. The applicant seeks damages against the respondents pursuant to s 236 of the Australian Consumer Law (ACL), which is contained in Sch 2 of the Competition and Consumer Act 2010 (Cth) for contraventions of ss 18 and 37(2) of the ACL, as well as for breach of contract against the first respondent. The applicant also seeks damages and injunctive relief in respect of allegedly defamatory statements published on Instagram by the first and third respondents. In her second further amended statement of claim, the applicant now also seeks judgment for moneys allegedly due and owing by each of the second and third respondents to the first respondent, such indebtedness having allegedly been assigned to her by a deed of assignment dated 9 February 2025. The applicant finally seeks interest on damages and other moneys payable pursuant to s 51A of the Act.

3 As to the first respondent, on 28 August 2023, I made orders requiring it to pay to the applicant damages as follows:

a.     the sum of $26,807.00, being money unpaid an Option and Service Agreement made between the Applicant and the First Respondent on or about 31 May 2022 (the Agreement); plus

b.     the sum of $6,375.00, being money owing under the Agreement; plus

c.     further damages (if any, after giving credit for the total sum of $33,182.00 in paragraphs a. and b. above) under s 236 of the Australian Consumer Law (ACL) for contravention by the First Respondent of ss 18 and 37(2) of the ACL, such further damages (if any), to be assessed by a Registrar; plus

d.     interest on those damages, to be assessed by a Registrar.

4 I also ordered the first respondent to pay to the applicant damages for the defamatory publications pleaded in the Further Amended Statement of Claim filed on 28 March 2023, plus interest, such damages and interest to be assessed by a Registrar. This order was made on the basis that the first respondent had not complied with orders made on 6 June 2023 that by 16 June 2023 it file a Notice of Address for Service nominating the address of a lawyer appointed to act for it, or that it file a Notice of Address for Service pursuant to r 4.05(2) of the Rules together with an application for the Court to dispense with the requirements of r 4.01(2) of the Rules. Orders made on 22 August 2023 had ordered that if the first respondent failed to do so by 25 August 2023, its defence would be struck out, and the applicant would have judgment against the first respondent with damages to be assessed.

5 The first respondent was wound up in insolvency on 30 January 2024. On 4 March 2024, orders were made staying the proceeding against the first respondent pursuant to s 471B of the Corporations Act 2001 (Cth).

6 The second and third respondents engaged solicitors in or around January 2024. The solicitors with carriage of the matter are based in Melbourne. A Notice of Acting – Appointment of Lawyer was filed on their behalf on 29 January 2024.

7 Further background to this proceeding is set out in the judgment in Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991; 307 FCR 444 (Russell (No 3)).

legislation

8 Rule 2.02 of the Rules provides as follows:

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.

9 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.

10 Rule 5.04(3), item 34, of the Rules provides that the Court may make a direction in relation to “[t]he transfer of the proceeding to another place at which there is a Registry”.

11 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.

12 Section 37M(1) 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.

13 The parties to this application accept that s 48 of the Act applies to an application to transfer the proceeding, and that the power in this section is subject to the overarching purpose set out in s 37M(1) of the Act. The applicable principles were summarised in the judgment of McKerracher J in Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrators Appointed) (in liq) [2009] FCA 227. At [15], his Honour set out the following useful summary:

* There must be sound reason to direct that the proceeding be conducted or continued elsewhere. If the party commencing the proceeding chose the place capriciously the Court would be justified in giving no weight to the choice of place. The balance of convenience is important but its weight must vary from case to case. What needs to be ascertained is where the case can be conducted or continued most suitably bearing in mind the interests of the parties, the ends of justice and determination of the issues between them, and the most efficient administration of the Court.

* The location of parties and witnesses, the place where the cause of action arose and the convenience of the Court are all factors.

* Typically there is no factor that is determinative but rather it is necessary to weigh all the relevant factors that might connect the proceedings to one jurisdiction or the other.

* The national character of the Court including its capacity to make flexible arrangements for the taking of evidence and the receipt of submissions is relevant.

* The question of which District Registry should conduct the proceedings does not raise matters of high principle. Essentially it is a matter of case management and proper recognition of the legitimate interests of each of the parties reflected in the balance of convenience as between them and the convenience of the Court and any economies and efficiencies which may attach to one choice or the other.

* There may be flexibility – one Registry could conduct pre-trial management while allocating the trial to a judge in another Registry.

* There is no burden of proof governing the exercise of the discretion in s 48 of the Act.

* The existence of related proceedings which may be case managed jointly may be important.

(Footnotes omitted.)

14 His Honour also considered at [16] that the following considerations may be relevant:

[T]he residence of the parties, the residence of witness, the expense and prejudice likely to the respective parties, the likelihood of delay being a significant consideration, whether there is, in respect of the competing suggestions as to venue, any possibility of an interference with a fair trial of the hearing, the balance of convenience in regard to all considerations.

15 Finally, his Honour at [17] considered that a judge to whom the management of a case has been allocated will be reluctant to transfer that duty to another judge without good reason for doing so.

submissions

Material relied upon

16 The second and third respondents rely upon:

(1) The interlocutory application filed on 9 April 2026.

(2) An affidavit affirmed and filed on 9 April 2026 by Ms Victoria Keller (Keller Affidavit), the second and third respondents’ solicitor.

(3) Written submissions filed on 9 April 2026.

(4) Written submissions filed on 7 May 2026.

17 The Keller Affidavit deposes, inter alia, that a mediation took place at the Queensland District Registry of this Court on 30 October 2025, and sets out that:

One of the solicitors for the second and third respondents, and senior counsel, travelled to Brisbane to attend the mediation in person.

The second and third respondents’ junior counsel, who is based in Brisbane, also attended the mediation in person.

The second and third respondents, and the applicant, did not travel to Brisbane to attend the mediation.

18 The applicant relies upon written submissions filed on 24 April 2026.

Written submissions

Second and third respondents’ submissions

19 The second and third respondents acknowledge the dismissal of their previous application seeking that the proceeding be transferred to the Victoria District Registry, and submit broadly that “[m]uch has changed since their earlier unsuccessful application including, most relevantly, that they are now legally represented”. The factors which they submit support the transfer of the proceeding to the Victoria District Registry are as follows:

(1) The causes of action arose in Melbourne, and the dispute has no connection to Brisbane or Queensland. They refer, citing Russell (Proper Place) at [20], to the applicant’s contention that the proceeding has a substantial connection to Melbourne.

(2) The interests of justice are best served by the proceeding being “heard and determined in Melbourne” given that it arises “in the context of the extraordinary COVID-19 restrictions that Melbournians uniquely experienced”.

(3) The applicant currently resides in Melbourne, and resided there when the dispute arose. Further, she will “[u]ndoubtedly” be a witness in the proceeding.

(4) The second and third respondents reside in Portugal, and will return to Australia in order to give evidence at trial in person. They have family in Melbourne with whom they can stay during the trial, but do not have the benefit of those arrangements in Brisbane.

(5) All of the witnesses likely to give evidence in the trial are located in Melbourne, save for the applicant’s father, whom the applicant has stated may be a key witness in support of her case: see Russell (Proper Place) at [10].

(6) In this regard, the Keller Affidavit contains depositions to the effect that at least the second and third respondents, and Ms Krezel and Mr McKay, are likely to be called at trial, none of whom lives in Brisbane, and that aside from the second and third respondents, all other witnesses to be called in support of their case reside in Melbourne. The second and third respondents submit that it is appropriate for the Court to determine this application now despite the parties’ evidence not yet being finalised, because “there is a dispute as to how evidence is to be given at trial”, namely that:

(a) The applicant maintains that the evidence should be given by affidavit.

(b) The second and third respondents submit it should be given viva voce.

The second and third respondents’ submission is that the judge who is to hear and determine the matter should decide that issue, and state that, for this reason, it is necessary to decide this application before this can occur, as the outcome may bear on the constitution of the Court.

(7) Without requiring the issue to be predetermined, the second and third respondents contend that their submission that evidence ought to be given viva voce has merit and should be seriously considered. They submit that the proceeding is, “at its heart”, an action in defamation, and contend that courts generally prefer to hear viva voce, rather than affidavit, evidence, as defamation cases turn on “credit, intention, meaning and harm”. They contend likewise in respect of defences of justification, contextual truth, qualified privilege and fair comment, on which the second and third respondents rely. Though the second and third respondents concede that this will involve the witnesses spending more time in the witness box, it is “most conducive to the just resolution of the dispute”, and therefore consistent with s 37M(1) of the Act.

(8) The expense to the parties in conducting the trial in Brisbane will be greater than if the trial were conducted in Melbourne, which would be inconsistent with s 37M(1)(b) of the Act.

20 The second and third respondents submit that the location of the parties’ legal representatives is “balanced”, as the applicant’s representatives are located in Brisbane, while the second and third respondents’ solicitors and senior counsel are located in Melbourne. The second and third respondents submit that the “Federal Court has a national character and parties are entitled to engage trusted legal representatives irrespective of where they are located”. Their submission is that, in circumstances where the dispute arose entirely in Melbourne, the applicant’s decision to engage Brisbane legal representatives should not be considered a strong bond tethering the proceeding to the Queensland District Registry.

Applicant’s submissions

21 The applicant frames the issue of whether it is appropriate to transfer the proceeding as one that falls for consideration at the time of the application, and being one of whether, at that time, there is a “sound reason” or “good reason” to change the “status quo”: see National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162; Inverness Medical Switzerland GmbH v Advanced Clinical Systems Pty Ltd [2002] FCA 1261 at [7]; Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd [2013] FCA 505 at [8]. The applicant’s broad submission is that there is no cogent reason to disturb the current case management arrangements in this proceeding.

22 The applicant submits that the procedural history, the stage of the matter, and the Court’s national character make the transfer and reallocation of this proceeding unnecessary, and that to do so would be inconsistent with the principle contained in s 37M(1) of the Act. Specifically in relation to the Court’s character as a national court, she refers to the fact that workload is organised by reference to National Practice Areas, with matters allocated to judges nationwide, submitting that that is a significant consideration that has been emphasised in recent authorities: see Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616 at [11]; Nielsen v Nielsen [2021] FCA 76 at [14] – [15]; Oberix Group Pty Ltd v Atkinson [2021] FCA 1259 at [29].

23 The applicant in her submissions also distinguishes the issue of the District Registry from which the proceeding is conducted, from the issue of the location of the ultimate trial of the matter, relying on Plankton at [12] and Russell (Proper Place) at [20].

24 As to the procedural history, the applicant points to, inter alia, the following factors:

(1) The proceeding has been on foot for nearly three and a half years, during which time:

(a) The applicant has continued to be represented by Brisbane counsel and solicitors.

(b) The matter has been allocated to my docket, and I have heard and determined three interlocutory applications: Russell v S3@Raw Pty Ltd [2023] FCA 305; Russell (Proper Place); Russell (No 3).

(c) The second and third respondents have resided overseas, were self-represented up until 29 January 2024, and have changed representation several times. In this regard:

(i) On 29 January 2024, they appointed lawyers based in Melbourne, notwithstanding that the proceeding had been on foot in the Queensland District Registry for over one year.

(ii) They have engaged both Brisbane- and Melbourne-based counsel. Their current senior counsel is based in Melbourne, and their current junior counsel is based in Brisbane.

(d) The proceeding is not yet ready for trial, and no trial dates have been set.

25 The applicant points to the following further factors which she says show that the second and third respondents have failed to demonstrate that the proceeding should be transferred to the Victoria District Registry of the Court:

(1) It has always been the case that the causes of action arose in Melbourne, and that the applicant resides there.

(2) The experience of residents of Melbourne during the COVID-19 pandemic is irrelevant, because:

(a) The present application is not an application regarding the trial venue, and in any case the trial will not be by jury.

(b) The proceeding is a commercial claim and does not raise matters of public policy or government action.

(c) The COVID-19 pandemic has limited relevance to any issue to be determined.

(3) Given that the second and third respondents reside outside of Australia, their place of residence is not relevant to the transfer of the proceeding, given that to date, they have participated remotely from Portugal. In any event, they will be required to incur the cost of travelling to Australia for the final hearing (the location of which is not considered in this application).

(4) In relation to the mode of giving evidence at trial:

(a) There is no reason to suppose that I cannot be the trial judge in the matter, whether the trial occurs in Brisbane or Melbourne, given that (i) I am familiar with the matter, (ii) I have heard and determined three previous interlocutory applications, and (iii) I have heard and determined matters in the Victoria District Registry: see Victorian Legal Services Board v Kuksal [2025] FCA 558; Disability and Healthcare Support Pty Ltd v National Disability Insurance Agency [2025] FCA 465; Construction, Forestry and Maritime Employees Union v Programmed Industrial Maintenance Pty Ltd [2025] FCA 257.

(b) The suggestion that the mode of giving evidence would differ in different registries is inconsistent with the Court’s nature as a national court. A single set of Practice Notes applies uniformly across the Court, including in respect of defamation proceedings: Defamation Practice Note (DEF-1).

(c) While one of the causes of action in this proceeding is defamation, the quantum of the claim in debt is the most substantial, being $405,151.99, and the applicant also claims relief in respect of misleading and deceptive conduct. Accordingly, the matter is at its heart a commercial claim with an associated defamation claim.

(d) Further, evidence in defamation proceedings is routinely given by way of affidavit. In this regard the applicant relies on Lehrmann v Network Ten Pty Ltd [2024] FCA 369; 422 ALR 507 at [302], [536], [764], [791], [941] (Lee J); Al Muderis v Nine Network Australia Pty Ltd (Trial Judgment) [2025] FCA 909 at [31], [33], [123] (Abraham J); Thurston v Fox Sports Australia Pty Ltd [2025] FCA 54 at [259] (Halley J); Archbishop Makarios Griniezakis v Morelas (Trial Judgment) [2026] FCA 156 at [8] – [9] (Abraham J).

(e) Even if another judge were to hear the trial, it would be unremarkable for a Docket judge to have given directions about the mode of filing evidence for trial.

(5) The expense of conducting the trial is of limited relevance, given that the present application relates to transferring the proceeding, not setting the trial venue.

(6) The second and third respondents appointed Melbourne-based solicitors and senior counsel, notwithstanding that the proceeding had been on foot in Brisbane for over a year. The second and third respondents’ solicitors have a Brisbane office, and their junior counsel is based in Brisbane.

(7) The applicant’s legal representatives, with the exception of junior counsel, have been involved in the proceeding since its commencement, and junior counsel was only retained after senior counsel took silk.

Second and third respondents’ submissions in reply

26 In reply, the second and third respondents characterise the applicant’s submissions as being that “it is appropriate for the proceeding to continue to be case managed from the Queensland District Registry up until the matter is ready to be listed for trial and for the question of transfer to then be determined”. In this regard, they refer to the Court’s procedure for “Allocation of Judicial Proceedings under NCF”, which contains the following:

The general principle underlying the individual docket system is that a case is allocated to the docket of a particular judge at or about the time of filing with the intention that, subject to any necessary reallocation, it will remain with that judge for case management and disposition.

27 The second and third respondents support the timing of this application on the basis that decisions concerning the conduct of the trial, including the preparation of evidence, and the mode of adducing evidence at trial, which are “controversial and will be the subject of argument”, are questions that the trial judge would wish to determine. The second and third respondents submit that the transfer application is the first step to facilitating “internal decisions” of the Court as to whether the judge to whom the proceeding is docketed will hear the trial. They submit that this will ensure the proceeding can be efficiently and appropriately case managed and disposed of.

28 As to the applicant’s submission regarding the relevance of the COVID-19 pandemic, they submit that the pandemic and the conditions it created are the unique context in which the dispute arose.

Oral submissions

Second and third respondents’ oral submissions

29 The second and third respondents submit orally that the relevant question in this application is:

[W]here 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?

30 They submit that s 37M of the Act “looms large” in this application, and that, in light of the dispute as to how the case is to be managed to final hearing, and how evidence will be given, transferring the proceeding to the Victoria District Registry provides greater efficiency in justly resolving the dispute. They refer firstly to s 37M(1)(b) of the Act, which refers to the just resolution of disputes “as quickly, inexpensively and efficiently as possible”. The second and third respondents’ counsel points to the following paragraph of the applicant’s submissions to support their contention that the parties are in disagreement as to the issues in this case:

While one of the causes of action relied on by the Applicant is one in defamation, the Applicant also relies on claims in debt and for misleading or deceptive conduct. In terms of quantum, the claim in debt is most substantial, being a claim for the sum of $405,151.99 as moneys due and owing. Accordingly, “at its heart”, the claim is more properly characterised as a commercial law claim, with an associated claim in defamation.

(Footnotes omitted.)

31 They also submit, generally, that in this proceeding, rarely can agreement be reached, and there is unlikely to be agreement as to the programming orders timetabling this matter to final hearing. In these circumstances, their submission is that the issues should be resolved by the judge who will ultimately hear and determine the matter, as contemplated by the Court’s docket system.

32 When asked, the second and third respondents’ counsel conceded that the strongest point in favour of the proceeding being transferred was that it should be managed by the judge who is hearing it. She submitted that such a course was contemplated by the individual docket system and contended that the fact of my having managed the proceeding for over three years, with several interlocutory “skirmishes”, was not to the point because these interlocutory proceedings did not influence the conduct of the final hearing.

33 When asked what reason there was for me not to hear the final hearing in Melbourne, if it were decided that the matter should be heard there, the second and third respondents’ counsel submitted that, guided by s 37M(2)(b) of the Act:

(1) They had brought this application because they did not know of the Court’s internal mechanisms for identifying an appropriate judge to hear the matter.

(2) It was not appropriate for them to pre-empt what the Court might internally do.

(3) The mechanism for “setting off that internal private decision-making is making this application”.

34 The second and third respondents further submit that the applicant’s proposal is “a substantially burdensome proposal” because it would pass the burden of a final hearing to a judge with no familiarity with the proceeding “until the eve of trial”, who might disagree with the manner of the proceeding’s case management. The second and third respondents’ counsel concedes that, subject to limited disclosure arising out of the most recent amendments to the statement of claim, such steps being routine and occurring as a matter of ordinary course, the matter can be progressed to trial.

35 The second and third respondents then rely on s 37M(2)(a) of the Act, which provides that the overarching purpose includes, inter alia, “the just determination of all proceedings before the Court”. They submit that this provision is relevant to the particular impact of COVID-19 on residents of Melbourne, as the events the subject of this proceeding, including the interruption to business and the underpinning of private enterprise, arose in that context. They contend that the impact of COVID-19 on the value of the first respondent is a central feature of this case, and one of the factors influencing the concept of “justice” in this proceeding is being able to conduct litigation “with the knowledge that the dispute will be aired and resolved in the place and context in which it arose”.

Applicant’s oral submissions

36 In her oral submissions, the applicant emphasises the distinction, highlighted by Lee J in Plankton, between an application to transfer the proceeding and an application regarding the location of the trial venue. The applicant emphasises the Court’s character as a national court and the trend of recent cases which, in her submission, are against the transfer of proceedings because of the Court’s character as such. She emphasises that proceedings are commonly allocated to interstate judges, and that there is no reason for this proceeding to be transferred, even if the final hearing occurs in Melbourne. She submits that transferring the proceeding after I have been the Docket judge for so long is contrary to the Court’s national character, which is a factor influencing the application of s 37M of the Act.

37 Relatedly, in relation to the mode of giving evidence, the applicant submits orally that it is not apparent how a change in the District Registry would affect this, given that the Court has a uniform set of Practice Notes. Further, the applicant submits that, to the extent that the second and third respondents suggest that there is a different mode of giving evidence in defamation proceedings, the matter is not, at its heart, a defamation matter, for reasons already submitted, and further that the potential mode of giving evidence is not a relevant or influential factor in this application.

38 The applicant then submits that:

(1) The second and third respondents’ need to travel to attend a final hearing is not relevant given that, since they live in Portugal, they will be required to travel in any event.

(2) In addition to Mr Russell, the Brisbane-based liquidators of the first respondent may need to give evidence in relation to the first respondent’s books and records insofar as they are relevant to the applicant’s claim for moneys allegedly due and owing by the second and third respondents in respect of their indebtedness to the first respondent which was allegedly assigned to the applicant on 9 February 2025.

(3) The second and third respondents’ senior counsel is the only barrister located outside of Queensland, and their Melbourne-based solicitors were engaged after the proceeding commenced.

(4) In the context of a national court such as this Court, it is common for counsel to travel and appear interstate.

39 Further, the applicant submits that the argument about the impact of COVID-19 on Melbourne residents is not relevant given that the matter (1) is not a jury trial, and (2) is predominantly a commercial claim, which can be determined by any judge of the Court.

40 In light of the above, the applicant’s overarching submission is that the matter continuing to be conducted from the Queensland District Registry and docketed to me is most consistent with s 37M in light of the fact that (1) I have long been involved in the matter and (2) some further case management is necessary before the matter is ready for trial. The applicant’s counsel notes, subject to having received instructions on the issue of disclosure, that the next steps are the filing and serving of evidence.

41 The applicant submits that, if the second and third respondents wish to have the final hearing in Melbourne, they should have made that application, rather than the present application to transfer the proceeding. In this regard, the applicant submits that I should be the judge hearing and determining the final hearing.

Second and third respondents’ oral submissions in reply

42 In reply, the second and third respondents submit orally that the application to transfer the proceeding is brought to “encapsulate[] the certainty with which the case management could be addressed … with the certainty of the judge that would be determining it, which is an internal matter for the Court”. Their submission is that this application is brought so that they can avoid criticism for waiting until the last minute to make a transfer application.

43 Further, in relation to the applicant’s submissions about the attendance of the liquidators of the first respondent as witnesses, the second and third respondents contrast the two lay witnesses referred to in the Keller Affidavit, whom they say would be more burdened than the liquidators if required to travel to attend the final hearing, given that the liquidators would be attending and giving evidence in a professional capacity and would be remunerated for their time in doing so.

Consideration

44 I am not persuaded that, consistent with the authorities referred to above, there is a sound or good reason to change the status quo of this proceeding being conducted from the Queensland District Registry. While there is no onus of proof as such in an application of this kind, the Court must still identify a good reason for ordering that the proceeding be transferred: Auschem Pacific Group Pty Ltd v Tismor Health & Wellness Pty Limited [2019] FCA 1216 at [20].

45 First, the second and third respondents in their submissions appear to conflate the issue of the District Registry from which the proceeding is conducted, and the issue of where the final hearing of the proceeding will ultimately be heard. As the authorities already mentioned bear out, these are separate questions. For this reason, the second and third respondents’ submissions directed to the cost of witnesses or legal representatives being required to travel to attend the final hearing do not inform the consideration of whether the proceeding should continue in the Queensland District Registry.

46 As to where the final hearing should be heard, this issue has not been raised by the second and third respondents’ interlocutory application. Further, in any event, the proceeding is not yet ready for trial, and no affidavits have been filed in relation to the ultimate issues to be determined. As both parties accept, subject to a possible limited issue regarding disclosure, the next step in the proceeding is for the parties to lead evidence, whatever the mode of such evidence may be.

47 Notwithstanding, I note that the Keller Affidavit deposes to the likelihood of certain individuals giving evidence in the proceeding, and I note further that the proceeding has a substantial connection to Melbourne. While these factors may bear upon the location of the hearing (and it may be appropriate that the final hearing occur in Melbourne), in my view they do not bear upon the issue of whether the proceeding should continue to be conducted from the Queensland District Registry or whether it should be transferred to the Victoria District Registry.

48 Relatedly, the issue of the mode by which evidence is to be led at trial is not one that cannot be determined by the Docket judge, even in the event that the final hearing is heard by a different judge. In this regard I accept the applicant’s submission that, as this Court is a national court, a single set of Practice Notes applies to matters within the same National Practice Area. I accept, consistent with the second and third respondents’ submissions, that individual judges may have their own approaches to case management. However, I do not think that such preferences are a good reason for the matter to be transferred to the Victoria District Registry. I consider that ordering that the matter be transferred would potentially involve unwarranted delays and inefficiencies, due to (1) the matter needing to be reallocated by the National Operations Register, and (2) as alluded to by the applicant (see above at [25](4)(a)), if the matter were reallocated, another judge would need to become familiar with the proceeding which has been on foot for over three years. Ordering that the matter be transferred would therefore be contrary to the principles articulated in s 37M of the Act. Further, and consistent with the applicant’s submission, it is not uncommon for judges to travel to a different District Registry to hear a matter if the circumstances require.

49 In relation to the second and third respondents’ submissions about the impact of the COVID-19 pandemic, I am not persuaded that the unique experience of Melbourne residents during the lockdowns is relevant to the issue of whether the proceeding should continue in the Queensland District Registry. As the applicant submits, the second and third respondents’ application is in relation to the transfer of the proceeding, not the venue of the final hearing. Accepting as I have that the matter has a substantial connection to Melbourne, I do not think that the effective case management of the proceeding towards trial is impacted by Melbourne residents’ unique experience of COVID-19. Further, the matter will not be tried by a jury such that this unique experience could be said to inform the assessment of the issues raised by the defamation claims and defences. I am otherwise not persuaded that the unique circumstances of COVID-19 might mean that the matter can only be tried before a Melbourne-based judge. For completeness, I note that no express submission to this effect was made.

50 Second, the second and third respondents have been able to participate in previous case management and interlocutory hearings via video-link, and more recently by their solicitors and counsel.

51 Third, while I accept that the second and third respondents are entitled to instruct Melbourne-based solicitors, being “trusted legal representatives”, I consider that, given their knowledge that the matter had been docketed to a judge in the Queensland District Registry, it was open to them to instruct Brisbane-based senior, as well as junior, counsel.

52 Fourth, to the extent that the second and third respondents raise expense as a factor in favour of transferring the proceeding, this is primarily relevant to the issue of the trial venue, not the District Registry from which the proceeding is conducted. As noted immediately above, the second and third respondents briefed Melbourne-based senior counsel with knowledge that the matter was being conducted from the Queensland District Registry. Further, as already indicated, it may well be appropriate for the final hearing to occur in Melbourne, and this would alleviate the potential expense of the second and third respondents’ lay witnesses who may be disproportionately burdened by being required to travel interstate, when compared to, for example, the liquidators of the first respondent.

53 Fifth, there is force in the statement of McKerracher J in Mortimer that a judge who has case-managed a proceeding will be reluctant to transfer this duty to another judge, without good reason for doing so: at [17]. I consider that this is more so when the proceeding has been allocated to my docket for a significant period of time, and several applications have been heard and determined.

54 Finally, in relation to the second and third respondents’ submission that this application encapsulates an application that the matter be finally determined in the Victoria District Registry, I consider this approach to be unsatisfactory and contrary to s 37M of the Act. An approach directed to the quick, inexpensive and efficient resolution of disputes, the efficient use of judicial and administrative resources available to the Court, and the efficient disposal of all proceedings in a timely manner (see s 37M(1)(b), (2)(b) and (2)(d) of the Act) would, in my view, have involved the parties seeking that the Court timetable the matter towards a final hearing and, in that context, raising any issues regarding the venue of the hearing.

costs

55 The second and third respondents’ submission in relation to costs is that, if they are unsuccessful in this application, costs should be in the cause, given that the application has been “appropriately made in a way that enlivened this issue”, in circumstances where they do not have “visibility about the internal mechanisms of the Court for transferring”, and where there is good reason for the final hearing to occur in Melbourne.

56 Rule 40.04 of the Rules provides as follows:

If no order for costs is made on an interlocutory application or hearing, the costs of the application or hearing:

(a)     if an order is made in favour of any party―follow the event; or

(b)     if no order is made in favour of any party―are taken to be costs in the cause of the successful party to the proceeding.

57 Rule 40.04 of the Rules has been described as the “default position” under the Rules in relation to an interlocutory application: see James v Commonwealth Bank of Australia (No 2) [2015] FCA 599 at [20] per Katzmann J. In most circumstances, a successful party is entitled to an award of costs: Australian Securities and Investments Commission v Marco (costs) [2020] FCA 835 at [25]. I note that in the context of interlocutory applications, the authorities express a rationale that if a plaintiff or applicant “has a victory on the way to a final hearing”, whether such a victory will ultimately be fruitful will depend on the outcome of the final hearing: see James at [17], citing Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119 at [56]. However, I also note that that rationale was expressed in relation to interlocutory applications brought by a plaintiff or applicant, rather than a defendant or respondent.

58 In the context of transfer applications brought under s 48 of the Act, examples abound of differing costs orders made where a transfer application is dismissed, but few cases have considered the rationale for such orders: see, e.g., Maxipoint Cultivation Technologies Pty Ltd v Points Direct Pty Ltd [2009] FCA 393; Auschem; Interleasing (Australia) Limited v Tieman Industries (in liq) [2015] FCA 1120; Koninklijke Douwe Egberts B.V. v Cantarella Bros Pty Ltd [2023] FCA 341. The second and third respondents did not refer me to any case in support of their submissions on costs.

59 In CMC (Australia) Pty Ltd v Austral Asia Line B.V. [2004] FCA 765, the defendant in the substantive proceeding was unsuccessful in transferring the proceeding. Allsop J (as his Honour then was) ordered that the plaintiff’s costs of the application be its costs in the cause: at [20]. There, his Honour considered the usual rule that costs follow the event, but considered at [16] – [19] that despite the defendant’s correspondence being belligerent, it caused the preparation for the matter to have been sped up, such that there had not been a huge wastage of costs. Further, the Court had also heard a directions hearing. In these circumstances, his Honour made an order that the plaintiff’s costs of the application be its costs in the cause.

60 In PEP Community Services Inc. t/as PEP Community Services v Job Futures Ltd [2008] FCA 1264, McKerracher J refused to transfer the proceeding from the Western Australia District Registry to the New South Wales District Registry: at [1]. That case concerned a situation where the Supreme Court of Western Australia had referred the proceeding to this Court, and had refrained from nominating to which District Registry the proceeding ought be referred, because the claims contained both Western Australian and New South Wales elements: at [3]. It was submitted for the unsuccessful respondent that the determinations as to which District Registry the proceeding ought to be transferred to were necessary to facilitate the progress of the matter, and were akin to directions made at a directions hearing, the costs of which are usually in the cause. The respondent also relied on the Court’s finding that the issues were finely balanced, and submitted that it was not unreasonable to bring the application. McKerracher J accepted that submission: at [4].

61 At [9] his Honour explained his decision to award costs in the cause in light of the fact that:

(1) The application was brought reasonably at an early time in the proceeding. Notwithstanding, the application did not succeed.

(2) If the applicant in the substantive proceeding was ultimately successful, it would have the costs of the transfer application. Thus, there would be no detriment suffered as a result of an order for costs in the cause, and by contrast it would be unfair for the applicant to recover the costs of the application which was “brought responsibly and was more in the nature of a directions hearing”.

62 I note that the Court has a broad discretion to award costs: Summers v Repatriation Commission (No 2) [2015] FCAFC 64; at [13] – [14]. Having regard to the circumstances of this application, I consider that the second and third respondents should pay the applicant’s costs. First, I consider that costs should follow the event. Second, having regard to the cases mentioned immediately above, the circumstances of this application stand in contrast to the circumstances of those cases. Here, as already discussed, I consider that the bringing of this application is not consistent with the principles articulated in s 37M of the Act. By contrast to the situation in PEP Community Services, where the hearing of the transfer application was essentially a directions hearing, in this case, the Court was required to determine a transfer application, when it could have made directions regarding the mode of giving evidence and timetabling the matter to trial. Further, rather than speed up the progress of this proceeding, by contrast to CMC, this application represents another interlocutory “skirmish” (to use the second and third respondents’ words) which delays the matter from being set down for a final hearing. Third, I do not think that the second and third respondents’ submissions about enlivening the issue of the venue of the final hearing in this matter have merit. The appropriate course of action would have been to make an application regarding the venue of the hearing, rather than an application to transfer the entire proceeding. In this regard, see, by analogy, the remarks of Cheeseman J in Moss v Contracoin Pty Ltd [2023] FCA 125 at [3] and [22]. Further, as already stated, the venue of the hearing, and the District Registry from which the proceeding is conducted, are distinct issues.

63 For these reasons, I will order that the second and third respondents pay the applicant’s costs of this application.

Conclusion

64 For the reasons given above, the application to transfer the proceeding to the Victoria District Registry is dismissed.

65 At the conclusion of the hearing of the application, the parties indicated that they would seek to propose case management orders progressing the matter to trial, were I to dismiss the application. I have accordingly made orders providing for a case management hearing to be convened to enable the matter to be progressed to trial.

Associate:

Dated:    18 June 2026