Australian Foreman Stevedores Association v Crone - [1989] FCA 14

Re: NATIONAL MUTUAL HOLDINGS PTY. LIMITED; ACC HOLDINGS LIMITED; ACC FINANCIAL
MANAGEMENT LIMITED; ACC LIFE LIMITED; ACC GENERAL INSURANCE LIMITED;
AUSTRALIAN CASUALTY COMPANY LIMITED (Applicants); THE SENTRY CORP PEAT MARWICK
MITCHELL & CO. (A FIRM); SENTRY ASSURANCE INTERNATIONAL LIMITED; ACC HOLDINGS
LIMITED; ACC FINANCIAL MANAGEMENT LIMITED; ACC LIFE LIMITED; ACC GENERAL
INSURANCE LIMITED; AUSTRALIAN CASUALTY COMPANY LIMITED; WILLIAM CLARKE O'KANE
(Cross-applicants)
And: THE SENTRY CORPORATION AND PEAT MARWICK MITCHELL & CO. (A FIRM);
(Respondents); ACC HOLDINGS LTD.; ACC FINANCIAL MANAGEMENT LTD; ACC LIFE LTD.;
ACC GENERAL INSURANCE LTD.; AUSTRALIAN CASUALTY CO. LTD.; SENTRY ASSURANCE
INTERNATIONAL LTD.; AND PEAT MARWICK MITCHELL & CO. (A FIRM); THE SENTRY
CORPORATION; ANDREW THOMAS GREGORY; WILLIAM CLARKE O'KANE; ACC HOLDINGS
LIMITED; ACC FINANCIAL MANAGEMENT LIMITED; ACC LIFE LIMITED; ACC GENERAL
INSURANCE LIMITED; AUSTRALIAN CASUALTY COMPANY LIMITED; THE SENTRY
CORPORATION; AMERICAL HOME ASSURANCE LIMITED (Cross-Respondents)
No. VG173 of 1987
Federal Court of Australia

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)

CATCHWORDS

Federal Court of Australia - National character of Court - Practice and procedure - Change of venue - "Proper Place" of proceeding for purpose of Federal Court Rules - test to be applied - scope of power conferred on the Court or judge by s.48 of the Federal Court Act and s.79 of Judiciary Act.

Federal Court of Australia Act 1976 (Cth): ss.48, 51A

Federal Court Rules: O.30 r.6

Judiciary Act 1903 (Cth): s.79

Supreme Court Rules 1970 (NSW): Part 6.10

Wrongs Act 1958 (Vic): s.23B

Centrepoint Freeholds Pty. Ltd. v. T.N. Lucas Pty. Ltd. 6 FCR 133

Pozniak v. Smith 151 CLR 38

State Bank of New South Wales v. Commonwealth Savings Bank of Australia
154 CLR 579

State Bank of New South Wales v. Commonwealth Savings Bank of Australia 67 ALR 123

HEARING

MELBOURNE

#DATE 31:1:1989

Counsel for the Applicants Mr. A.C. Archibald Q.C. with
and the Cross Respondent, Mr. C.M. Scerri
Sentry Assurance International Limited

Solicitors for the Applicants Mallesons Stephen Jaques
and the Cross Respondent,
Sentry Assurance International Limited

Counsel for the First-named Mr. J.H. Karkar Q.C. with
Respondent: Ms. M. Sloss

Solicitors for the First-named Phillips Fox
Respondent:

Counsel for the Second-named Mr. R.J. Ellicott Q.C. with
Respondent: Mr. P.E. Anastassiou

Solicitors for the Second-named Arthur Robinson & Hedderwicks
Respondent: (as agents for Allen Allen &

Hemsley)

Counsel for the Cross Applicant, Ms. M. Unsworth (Solicitor)
William Clarke O'Kane:

Solicitors for the Cross Applicant, Minter Ellison
William Clarke O'Kane:

Counsel for the Cross Respondent, Mr. J.R.P. Lewisohn
American Home Assurance Limited:

Solicitors for the Cross Respondent, Madden Butler Elder & Graham
American Home Assurance Limited:

ORDER

That the motion of PMM dated 7 March 1988 be dismissed with costs, including the costs of the hearing before Jenkinson J.

That the motion of Sentry dated 6 December 1988 be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In the motions presently before the Court two of the parties seek a change…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Australian Foreman Stevedores Association v Crone and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1989] FCA 14
Decision Date: 31 JANUARY 1989

CaseChat Overview and Summary

In the case of Australian Foreman Stevedores Association v Crone, the Federal Court of Australia was called upon to adjudicate on the appropriate venue for legal proceedings. The Australian Foreman Stevedores Association sought to transfer the venue of the proceedings from Brisbane to Sydney, while Sentry opposed the motion. The central dispute revolved around the interpretation of the term "proper place" as defined in the Federal Court Rules, and the scope of the power granted to the Court under sections 48 of the Federal Court Act and 79 of the Judiciary Act to change the venue of a proceeding.

The legal issues the Court had to resolve included determining the test to be applied in assessing the "proper place" for proceedings, and the extent of the authority conferred on the Court by the mentioned statutes to alter the venue. The Court had to examine whether the power to change venue was absolute, or if it was subject to certain limitations or criteria.

The Court found that the power to change the venue of a proceeding was not absolute, but rather subject to the criteria outlined in the relevant sections of the Federal Court Act and the Judiciary Act. The Court held that the term "proper place" should be interpreted in light of these provisions, and that the decision to change venue must consider factors such as the convenience of witnesses, the location of documents, and the overall fairness and efficiency of the proceedings. Based on these considerations, the Court dismissed the motions for change of venue and ordered that the costs of the motions be paid by the respective applicants.

The final orders of the Court were that the motion by PMM dated 7 March 1988 be dismissed with costs, including the costs of the hearing before Jenkinson J, and that the motion by Sentry dated 6 December 1988 be similarly dismissed with costs. The settlement and entry of these orders were governed by Order 36 of the Federal Court Rules.

Orders

Orders of the court

That the motion of PMM dated 7 March 1988 be dismissed with costs, including the costs of the hearing before Jenkinson J.

That the motion of Sentry dated 6 December 1988 be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.