Ausino P/L v Servio Machine Tools P/L

[1993] FCA 705

705 193

JUDGMENT NO. .. .m * . . - - . . . . . . . . m*. * . .

. .

- - - -IN THE FEDERAL -COURT OF A U S T ~ I A

)

VICTORIAN DISTRICT REGISTRY	)	No. VG 171 of 1993
GENERAL DIVISION
B E T W E E N :

AUSINO PTY LIMITED

Applicant

SERVIO MACHINE TOOLS PTY LIMITED & ORS

Respondents

JUDGE :	Heerey J
W:	10September 1993

m:  Melbourne - 6 OCT 1993 EDERAL COURT OF

AUSTRALIA PRINCIPAL

REASONS FOR JUDGMENT REGISTRY

The respondents seek a transfer to Wales

. . .

District Registry under s.48 of the Federal Court Act 1976 and

l 1 ) The test to be applied has been laid down by the Full Court in National Mutual v Sentry Corporation [l9881 19

FCR 155 at 162 in these terms. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the interests of justice and the determination of the issues between them and the most efficient administration of the court. I am satisfied that on balance the decision comes down in favour of a transfer to Sydney.

which the applicant sold to the relevant respondent in Sydney.	Central to the remaining disputes in the case are complaints
about the quality of this machinery. The machinery is in Sydney. The relevant respondent's business is in Sydney. It is, in effect, a one man business and would have to be closed for the time of the trial and preparation for the trial, were the trial to be continued in Melbourne. In Sydney the business is in an inner Sydney suburb and could be managed consistently with its proprietor attending the trial were it held in Sydney.
Another essential witness, the respondent's accountant, has family responsibilities which would make it difficult for her to travel to Melbourne. The applicant has not shown any countervailing instances of inconvenience to witnesses which would be caused if the case were to be transferred to Sydney.
I take the point that the proceeding has proceeded some little
distance, having been commenced on 7 May 1993. However, in the meantime there has only been an exchange of pleadings and
discovery by the respondents, so up until now there has been nothing done in the case which raises difficulty as to
location. But it is clear that those difficulties will arise in the future, if there is to be a trial, and on balance there will be I think significantly more inconvenience to the relevant respondent if the matter were to proceed in Melbourne than would be the case for the applicant if the matter were to be transferred to Sydney.
As to the question of transfer to the County Court, obviously that is not appropriate once the matter has been transferred to Sydney. However, I do not intend to shut out the applicant from seeking a transfer to the District Court of New South Wales, if it be so advised. That question is better decided I think in the Sydney context, in the light of more exact knowledge as to jurisdiction of the District Court, delays that might occur in that court, and other local factors. On the face of it the cross-claim does exceed the jurisdiction of the County Court, and probably also of the District Court. However, the extent to which that cross-claim is really provable might be something which would bear further examination. But I am not, of course, expressing my opinion one way or the other about it.
I will direct that the proceeding be continued in the New South Wales District of the Federal Court.
I order that the applicant pay the respondents' costs of the
motion, and as I have already noted, there will be an order by consent that the applicant file and serve a list of documents
on or before 5 October 1993.
There will be judgment for the applicant against the fourth respondent in the sum of $910,097.07 being $761,613.71 for judgment sum and $148,483.36 interest.
I order the fourth respondent pay the applicant's costs to be taxed, including reserved costs.

The main issue remaining in dispute concerns machinery of a fairly substantial kind, that is to say not readily portable,

I certlfy that this and the

preceding three (3) pages are a true copy of the reasons for judgment of his

Honour Mr Justice Heerey.

Dated: 9 September 1993

ADDearances

Counsel for the applicant:	Mr N Jones
Solicitor for the applicant:	Blake Dawson Waldron
Counsel for first to third	Mr W S Peters
respondents:
Solicitor for the first to	Booth Mather Blaclanore
third respondents:
Date of hearing:	9 September 1993