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
Details
- AGLC
- Ausino P/L v Servio Machine Tools P/L [1993] FCA 705
- Case
- [1993] FCA 705
- Decision Date
CaseChat Overview and Summary
In the case of Ausino P/L v Servio Machine Tools P/L, the applicant, Ausino P/L, sought a transfer of proceedings from Melbourne to Sydney. The case revolved around a dispute concerning the quality of machinery sold by Ausino P/L to Servio Machine Tools P/L, which was located in Sydney. The machinery in question was situated in Sydney, and the business of the relevant respondent, being a one-man operation, would have to be closed for the duration of the trial and its preparation if the trial were to continue in Melbourne.
The primary legal issue before the court was whether the proceedings should be transferred to the Sydney District Registry of the Federal Court, in accordance with section 48 of the Federal Court Act 1976. The Full Court had previously established the test for such transfers in National Mutual v Sentry Corporation, which required consideration of the interests of all parties, the interests of justice, the determination of the issues between the parties, and the efficient administration of the court. In light of this test, the court considered factors such as the location of the machinery, the inconvenience to essential witnesses, and the progress of the case thus far.
The court determined that the case should be transferred to Sydney for the trial, as it was most suitable for the efficient administration of justice. The respondent's business and a key witness would face significant inconvenience if the trial were held in Melbourne, and the applicant had not shown any countervailing instances of inconvenience for witnesses if the case were transferred to Sydney. The court also noted that the case had not progressed significantly, with only an exchange of pleadings and discovery by the respondents taking place, and that any difficulties related to location would arise in the future. The court ordered that the proceedings be continued in the New South Wales District of the Federal Court and made orders regarding costs and judgment in favour of the applicant against the fourth respondent.
The decision in this case highlights the importance of considering the interests of all parties, the interests of justice, and the efficient administration of the court when determining whether to transfer proceedings between different jurisdictions.
The primary legal issue before the court was whether the proceedings should be transferred to the Sydney District Registry of the Federal Court, in accordance with section 48 of the Federal Court Act 1976. The Full Court had previously established the test for such transfers in National Mutual v Sentry Corporation, which required consideration of the interests of all parties, the interests of justice, the determination of the issues between the parties, and the efficient administration of the court. In light of this test, the court considered factors such as the location of the machinery, the inconvenience to essential witnesses, and the progress of the case thus far.
The court determined that the case should be transferred to Sydney for the trial, as it was most suitable for the efficient administration of justice. The respondent's business and a key witness would face significant inconvenience if the trial were held in Melbourne, and the applicant had not shown any countervailing instances of inconvenience for witnesses if the case were transferred to Sydney. The court also noted that the case had not progressed significantly, with only an exchange of pleadings and discovery by the respondents taking place, and that any difficulties related to location would arise in the future. The court ordered that the proceedings be continued in the New South Wales District of the Federal Court and made orders regarding costs and judgment in favour of the applicant against the fourth respondent.
The decision in this case highlights the importance of considering the interests of all parties, the interests of justice, and the efficient administration of the court when determining whether to transfer proceedings between different jurisdictions.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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