Barde As v Oceanfast Ferries Pty Ltd
[1997] FCA 315
•2 MAY 1997
CATCHWORDS
PRACTICE AND PROCEDURE - application to transfer proceedings to the Western Australian Registry of the Federal Court - where potential witnesses resident in Western Australia - where substantial amount of work carried out in Sydney - whether sound reason in the interests of justice and the efficient administration of the Court for proceedings to be transferred.
Federal Court of Australia Act 1976, s 48
Federal Court Rules, O 10 r 1(2)(f)
National Mutual Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, cited
Re Claremont Petroleum NL Moage Ltd v Claremont Petroleum NL (1991) 6 ACSR 205, cited.
BARDE AS - v -
OCEANFAST FERRIES PTY LIMITED
No NG 19 of 1997
Tamberlin J
Sydney
2 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 19 of 1997
GENERAL DIVISION )
BETWEEN: BARDE AS
Plaintiff
AND OCEANFAST FERRIES PTY
LIMITED
Defendant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 2 MAY 1997
MINUTE OF ORDERS
The Court orders that the application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 19 of 1997 GENERAL DIVISION )
BETWEEN: BARDE AS
Plaintiff
AND OCEANFAST FERRIES PTY
LIMITED
Defendant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 2 MAY 1997
REASONS FOR JUDGMENT
TAMBERLIN J:
This is an application by the defendant for transfer of the proceedings from the New South Wales Registry to the Western Australian Registry of the Federal Court for hearing in that State.
The application is brought pursuant to O 10 r 1(2)(f) of the Federal Court Rules and s 48 of the Federal Court of Australia Act 1976.
Section 48 empowers the Court at any stage of the proceedings to direct that proceedings be conducted at a place specified in the Order.
The controlling principles are set out in the judgment of the Full Federal Court in National Mutual Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 as follows:
"The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceedings chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
The balance of convenience is important, but its weight must vary from case to case. Ultimately 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. It cannot and should not, in our opinion, be defined more closely or precisely." (Emphasis added)
The Statement of Claim was filed on 9 January 1997. A defence was filed on 25 March 1997 and a reply on 24 April 1997.
The Statement of Claim arises out of an alleged contract, dated 7 November 1996, whereby the plaintiff agreed to ship a catamaran from Fremantle to Guadeloupe. It is said that the defendant, by correspondence, evinced an intention not to be bound by the contract. This breach was accepted by the plaintiff and communicated to the defendant. The plaintiff claims damages.
In the Defence the defendant denies there was any concluded agreement entered into either in the form alleged or at all. In the alternative, it is said that if there were a binding contract, it was a contractual condition that the vessel "Barde Team" arrive at Fremantle on 15 November 1996 and that in breach of the contract the vessel was not ready to load the catamaran by the specified date, and that this default was a repudiation of the contract. This breach, it is said, was accepted by the defendant.
The plaintiff's Reply disputes the allegation that the vessel was not ready to load within the laycan period. The expression "laycan" is an abbreviation for "laydays cancelling". "Laydays cancelling" refers to the "period during which the shipowner must tender notice of readiness to the charterer that the ship has arrived at the port of loading and is ready to load"; see P. Brodie, Dictionary of Shipping Terms (2nd ed).
The plaintiff says that the laycan period was from 30 November 1996 until 10 December 1996 and that a Notice of Readiness was tendered on 10 December 1996 which was within the laycan period. It appears that problems had arisen as a result of the need for repairs to the stabiliser.
In support of the application the defendant filed an affidavit of Mr Cocks, a solicitor. He asserts, on instructions, his belief that negotiations with the plaintiff took place through the defendant's broker, Australian Independent Shipbrokers ("AIS"), for the charter of the "Barde Team" to carry the catamaran from Fremantle to Guadeloupe. The negotiations on behalf of the defendants were carried out at AIS by Mr Browning, Shipping Manager for the defendant, and Mr Stuckert of AIS. Mr Cocks states his belief, based on the Statement of Claim, his knowledge of the circumstances, and instructions, that the defendant will require that the Shipping Manager, Mr David Browning be called. In addition, it is said that a local ship's agent, (unnamed), who can verify the expiry of the laycan days, would be called. It was also contemplated that a chartering expert, who could provide expert practical knowledge as to the meaning and important conditions in the relevant documentation, would be called. It is said that it is intended that a Western Australian-based chartering broker would be used.
Mr Cocks, in support of the application, refers to the added expense in arranging for Western Australian witnesses to travel to Sydney; the expense of transferring documents; and the need to instruct Sydney lawyers as agents. He then expresses the belief that Western Australia, having the strongest nexus with the subject matter of the proceedings, is the proper forum.
The plaintiff resists the application and relies on an affidavit by Ms Ellis, a Senior Associate with Ebsworth and Ebsworth, who are the solicitors for the plaintiff. She states that instructions were received on 11 December 1996 and a substantial amount of work has been carried out to date. This work includes: obtaining instructions; retaining Counsel; drafting the Application, Statement of Claim, and Reply. She has reviewed more than 300 documents from the plaintiff's brokers and prepared a draft list of documents. She has reviewed the defendant's list of documents and reviewed the Defence in relation to a request for particulars. She has conducted lengthy negotiations with banks in relation to the provision of security for costs.
Ms Ellis has also attended on AIS in Sydney. She testifies that the documents indicate that negotiations for the contract were carried out between AIS in Sydney and Nordane Shipping in Denmark. These negotiations were conducted by AIS through Mr Stuckert, its Chartering Manager, supervised by Mr Fitzpatrick, a Director. The offices of AIS are at Artarmon in Sydney. It is anticipated that Mr Fitzpatrick and Mr Stuckert may be necessary witnesses and that it may also be necessary to serve subpoenas on them for this purpose. Ms Ellis is aware of a volume of correspondence in the possession of Messrs Stuckert and Fitzpatrick in Sydney which it may be necessary to subpoena.
It is evident that there has been a considerable amount of work carried out in Sydney and that it is likely that the evidence in relation to the formulation and terms of the contract will involve the calling of witnesses resident in Sydney. That evidence would be directed to the negotiations, formation and terms of the contract alleged. No doubt a substantial amount of evidence on this aspect of the case will be documentary.
The Defence and Reply crystallise what may be a significant factual dispute in relation to the breach alleged by the defendant to the effect that the "Barde Team" was not ready to load the catamaran by the specified date and that this amounted to a repudiation.
With respect to that matter, Mr Cocks indicates a local ship's agent would need to be called who can verify the expiry of the laycan days and a chartering expert who can provide expert practical knowledge of the meaning of conditions in the documentation, most notably the Conlinebooking Note. I do not attach any particular weight to the fact that a chartering expert may be called as to the meaning of the documentation because no doubt such an expert could be found in Sydney. Indeed, there is nothing to indicate that such evidence would be relevant or admissible. No one has yet been engaged or approached by the defendant. However, there is some force in the submission that the dispute concerning the readiness of
the vessel may rise to a factual dispute which could lead to the necessity to call other witnesses in Western Australia.
It was common ground that the expense of transferring documents was not a significant consideration. The need to instruct Sydney solicitors by the defendant in addition to Perth solicitors is also not a matter of great moment because the same position might prevail as regards the need for Perth agents if the matter is heard in Perth. It is not possible to give any content to the claimed expense and inconvenience in arranging lay witnesses to travel to Sydney because with the exception of Mr Browning and an unknown chartering expert no details are given.
The material presently before me does not enable me to make an informed assessment of the likely ambit of the factual disputes nor the likely witnesses nor the extent of their differences. No statements or affidavits have yet been filed.
This is not a case where it can be said that the proceedings have been "capriciously instituted" in Sydney. This is where negotiations took place, where some of the negotiating parties reside and where a large number of documents are located.
Given the present state of communications technology many of the perceived problems raised by the defendant as to the conduct of the case are more apparent than real. There is no reason why a Sydney-based Judge could not conduct the interlocutory proceedings and case manage the matter by video or telephone link with the Western Australian parties and representatives if necessary. This Court is committed to the principle of case management by the judge who is to eventually hear the proceeding in question. This objective can readily be accommodated if the proceeding remains in the Sydney Registry. This is an Admiralty matter and in such matters it is not unusual to conduct hearings via video link with the assistance of facsimile facilities.
As Lockhart J pointed out in Re Claremont Petroleum NL Moage Ltd V Claremont Petroleum NL (1991) 6 ACSR 205 at 213:
"This Court is a national court. Its judges move from state to state and Territory to Territory for any purpose connected with the conduct of a case at any stage be it interlocutory or the final hearing."
If it becomes apparent, when the evidence is filed, that the matter should be transferred then such a need could be accommodated. However, at the present stage the area of detailed factual dispute is vague and amorphous.
It is an important consideration in the present case that, to date, a large amount of work has been carried out in New South Wales and the matter has been brought up to the stage of discovery and inspection and that Sydney Counsel has been retained in drafting the pleading.
Having considered the pleadings and the evidence presented to me, in the light of the submissions made on the application, I am not satisfied that the defendant has established there is sound reason in the interests of justice and the efficient administration of the Court to direct that the proceedings be transferred to the Western Australian Registry.
Accordingly, I dismiss the defendant's application with costs.
I certify that this and
the preceding eight (8)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 2 May 1997
Counsel for Applicant: Dr A.S. Bell
Solicitor for Applicant: Ebsworth & Ebsworth
Solicitor for Respondent: Cocks Macnish
Date of Hearing: 30 April 1997
Date Judgment Delivered: 2 May 1997
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