Federal Court of Australia

Salon Services PRO INC v Kevin Murphy USA Business Services Pty Ltd [2026] FCA 794

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth), the proceedings be transferred to the Victoria District Registry of the Federal Court of Australia.

2.    The costs of this application be costs in the proceedings.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    There are three proceedings that have been allocated to my docket. In each proceeding, there is at least one common respondent, but the respective applicants are different. There is a commonality of issues raised across the three proceedings to which I will return. These reasons address an application made by the respondents in each of the proceedings for an order under s 48 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and rule 2.02 of the Federal Court Rules 2011 (Cth) (the FC Rules) that the three proceedings be transferred to the Victorian District Registry of the Federal Court.

2    In inter partes correspondence between the parties, the applicants did not oppose the orders sought by each of the respondents but provided helpful written submissions as to why the applicants disagreed with some of the propositions advanced by the respondents in support of the transfer application.

3    In the result, I am satisfied that the orders sought by the respondents should be made. My reasons for so concluding are as follows.

2.    APPLICABLE PRINCIPLES

4    The principles applicable to the making of orders for the transfer of a proceeding to another place were not in dispute. What follows is borrowed from the parties’ submissions.

5    Rule 2.02 of the Rules permits a party to apply for the transfer of a proceeding to another place. Section 48(1) of the FCA Act gives the Court a discretion “at any stage of a proceeding in the Court, [to] 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.”

6    The power conferred by s 48 of the FCA Act may be exercised flexibly. Numerous authorities reveal common factors that are apposite to the exercise of the power under s 48 of the FCA Act, although it is well to observe the statement of the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 that, “[u]ltimately 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.” The relevant principles, distilled from the authorities of this Court, include that:

(a)    where the dispute concerns, or arises out of, contractual arrangements and those contracts contain an exclusive jurisdiction clause requiring the determination of disputes in a particular place, that will usually weigh in favour of a transfer of proceedings to that place. In that circumstance, the Court will ordinarily require parties to abide by their bargain “unless there is some good reason why that should not be done”: Neville’s Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd [2016] FCA 859 at [19] (Gleeson J); York Civil Ltd v BHP Billiton Mitsui Coal Pty Ltd [2014] FCA 1422 at [38] (Besanko J); Aquila Resources Ltd v Pasminco Ltd [2004] FCA 39 at [41] (RD Nicholson J);

(b)    similarly, if the parties’ agreement refers to a choice of governing law, that will weigh materially in favour of a transfer to the place of that governing law, even though there may not be any relevant difference between the law of the competing locations: Neville’s Bus Service at [5]; Aquila at [36] (RD Nicholson J);

(c)    it is relevant that an application is brought promptly as doing so will avoid injustice and inconvenience (including to the Court) that might otherwise arise where an application is made after numerous steps have already been undertaken: ACN 168 479 614 Pty Ltd (in liq) (recs & mgrs. apptd) v Smedley (No 2) [2024] FCA 1412 at [26]-[27] and [41] (Goodman J). See also First National Group of Independent Real Estate Agents Ltd v Elyod Investments Pty Ltd [2008] FCA 1260 at [9]-[12] (Jessup J) where the delay in making the application “tipped the scales” against transferring;

(d)    there is no onus of proof to be discharged by the party seeking to have the proceedings continued elsewhere: Neville’s Bus Service at [4(7)]; Sentry at 162;

(e)    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 also relevant: Smedley (No 2) at [9] (Goodman J, referring to “settled” factors listed by White J in ACCC v Australian Egg Corporation Ltd [2014] FCA 1010 at [6]);

(f)    the place of residence of the parties and their witnesses, the expense to the parties involved in conducting proceedings in another location, the place where the events giving rise to the applicant’s cause of action took place, and the convenience of the Court itself are all relevant considerations: Smedley (No 2) at [9] (Australian Egg Corporation at [6(c)]); and

(g)    little weight should be given to the location of a party’s legal representatives: Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee (2007) 156 FCR 444 at [29] (Mansfield J).

3.    CONSIDERATION

7    In the present case, I am satisfied that the following matters weigh in favour of transfer of the proceedings to the Victorian District Registry.

8    First, the applicants in the proceedings have consented to the transfer. The applicants appear to have consented to the transfer in order to avoid the need for an interlocutory skirmish. Nevertheless, consent was given. It was also given notwithstanding the choice exercised by the applicants to commence proceedings in New South Wales. I am satisfied that I should give due weight to this consensual position.

9    Second, each of the three proceedings concerns the parties’ rights and obligations under two contracts (which are different contracts in each proceeding but contain relevantly identical provisions). The first such contract is a “Distribution Agreement”, clause 33 of which provides:

Governing law and jurisdiction

This Agreement is governed by the laws of Victoria. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.

10    The second contract is an “Incentive Agreement”, clause 8(g) of which provides:

Governing Law and Jurisdiction. This Agreement is governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction in Victoria, Australia in connection with any dispute concerning this Agreement.

11    As will be apparent from their text, each of these clauses is directed to governing law, jurisdiction and geographical location. They provide that the relevant law is Victorian law, and that the parties submit to the exclusive jurisdiction “in Victoria” or courts exercising jurisdiction in that State. A purposive interpretation of those clauses in accordance with well-established principles of contractual construction indicates that the parties’ bargain was one that sought to ensure that the determination of any dispute occurs in Victoria.

12    The applicants submit that by consenting to the orders sought, they should not be taken as having conceded that the proposed transfer is necessary either to give effect to the bargain struck between the parties or to advance the overarching purposes of case management as expressed in s 37M of the FCA Act.

13    Despite the applicants’ helpful submissions, I accept that the contractual bargain made between the parties is a matter to which significant weight should be given in the absence of good reason.

14    Third, subject to what I say below in the final matter that I address, on the evidence before me, there is no good reason not to give effect to the contractual bargain made between the parties. On the evidence before me, there is nothing that connects any aspect of the parties’ dispute to New South Wales beyond the location of one office of the applicants’ solicitors. The applicants’ written submissions pointed out that it may be premature to make any determination about this matter in circumstances where pleadings have not closed and the parties have not yet filed any evidence from the witnesses they propose to call. The applicants say that it would be open to the Court to wait until further steps are taken in advance of the litigation before making any determination to accede to the transfer application. Having said that, the applicants accept that they do not anticipate calling any witnesses based in New South Wales in the respective proceedings.

15    Based on the evidence before me, the respondents say that:

(a)    the first and second respondent in each of the proceedings is registered in Victoria and, for most of their corporate existence, have had Victoria as their registered “principal place of business”;

(b)    there do not appear to be any witnesses residing in New South Wales that are proposed to be called by any party, which has been confirmed by the applicants;

(c)    on the other hand, there are several witnesses likely to be called by the respondents who reside in Victoria, including:

(i)    Mr Peter McDonald, former Chief Executive Officer, and sole director of the first and second respondents, who is referred to in the statements of claim in each of the proceedings as a party to relevant conversations which are alleged in the proceedings and is one of the authors of various other communications particularised in the pleadings;

(ii)    Ms Jess Sash, Chief Global Education Officer. The respondents anticipate that Ms Sash will give evidence about the significance of education to the “Kevin Murphy business”, and how those programmes are conducted within salons. The respondents expect her evidence to be relevant to various of the applicants’ alleged breaches of the agreements, in particular as to any failure to comply with the obligation to promote “Services” as that term is defined in the Distribution Agreement; and

(iii)    Mr Kevin Murphy, the founder of the respondents. The respondents anticipate that Mr Murphy will give evidence about the conduct of education programmes and the strategy that has informed the expansion of the Kevin Murphy brand “presence” in the United States. That evidence is said to be relevant to assessing the applicants’ alleged breaches as relied upon by the respondents. Additionally, Mr Murphy’s evidence is expected to be of assistance to the Court when it is called on to assess the objectively known circumstances relevant to understanding the commercial purpose of the Distribution Agreement(s), which is further said to be relevant to construing various of the material terms in dispute.

(d)    finally, it is said that the applicants are American based companies and there is no evidence to suggest they have any link to New South Wales. The applicants have not contended otherwise.

16    I am satisfied that on the evidence before me each of these factors weighs in favour of the orders that are sought.

17    Third, I accept that the application has been brought promptly and before any substantive step has been taken. I accept that this factor too weighs in favour of the orders that are sought.

18    Finally, it is necessary to state some obvious matters about the nature and function of this Court that may provide good reason not to accede to the orders that are sought. This Court is a national one. It has the capacity to put in place arrangements, including flexible arrangements for the hearing and determination of proceedings in different registries even if there is no formal transfer of a proceeding from one of its registries to another. The Judges of this Court regularly travel interstate to conduct hearings to accommodate the interests of justice, including the interests of the parties or witness, and the busy workload of this Court. The Court is also well placed to implement other measures such as audio-visual links to facilitate the interests of justice where its dictates so require. Where this occurs, and in the contemporary conduct of litigation before this Court, it seems a somewhat hollow point to raise that the bargain between the parties is such that a particular dispute must be heard and determined in one place or another. Practical, geographical and metaphysical questions may properly be raised as to what is the “place” of the hearing in the face of the very many flexible arrangements that the Court regularly implements. That may also raise interesting questions as to jurisdiction where the Court would, irrespective of the “place” where one or more hearings is physically conducted, the laws of the Commonwealth and/or the laws of a particular State or Territory will be applied. None of these esoteric matters need to be answered in the present case, though I have given some weight to whether the proceedings could remain in my docket in the New South Wales Registry and still uphold the parties’ bargain and their other respective interests.

19    On balance, having considered each of these matters and the parties’ helpful submissions, I am satisfied that the orders sought by the respondents should be made.

4.    DISPOSITION

20    For the above reasons, I will make the orders that are sought by the respondents.

Associate:

Dated:    22 June 2026