Beckwith, P,G, v Ross Palmer Interiors Pty Ltd
[1990] FCA 256
•31 MAY 1990
Re: PETER GEORGE BECKWITH and VALERIE ROSS BECKWITH
And: ROS PALMER INTERIORS PTY LTD; ELIZABETH DAVIES ANTIQUES PTY LTD;
ROSAMUND JANE PALMER and ELIZABETH DAVIES
No. WA G97 of 1989
FED No. 256
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)
CATCHWORDS
Practice and Procedure - motion for transfer of proceedings - proper place in relation to proceeding - matter ready to be set down for trial - relevant considerations discussed.
Federal Court of Australia Act 1976 s.48
Jurisdiction of Courts (Cross-Vesting) Acts 1987 s.6
National Mutual Holdings Pty. Ltd. v. Sentry Corporation (1988) 83 ALR 434
HEARING
PERTH
#DATE 31:5:1990
Counsel for the Applicants: Mr S.J. Archer and Ms J. Gillon
Solicitors for the Applicants: Robinson Cox
Counsel for the Respondents: Ms C. McLure
Solicitors for the Respondents: Corrs
ORDER
The motion be stood over.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application to transfer this matter to the Sydney Registry of the Federal Court to become the proper place for the conduct of the proceedings pursuant to Order O.10 sub-r.1(2)(f). Pursuant to O.1 r.4 the proper place in relation to any proceeding means the place at which the proceeding was commenced, or if it is transferred, the place to which it is transferred.
The relevant criteria to be considered in an application of this type have been considered and discussed by a Full Court of this Court in National Mutual Holdings Pty. Ltd. v. Sentry Corporation (1988) 83 ALR 434. As the Court said at p 442:
"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."
A fundamental part of the character of the Federal Court is that it is a national court to which no territorial limitations of jurisdiction apply in the nature of those applying to the Supreme Courts of the States. Although the latter have the benefit of legislation in the Federal and State Acts which form a scheme for the cross-vesting of jurisdiction, that scheme does not provide those Courts with full equivalence to the Federal Court which is able to sit and enforce its judgments in any part of Australia.
Therefore, if an applicant has chosen to commence proceedings in a registry of this Court as the most convenient place for the applicant, on the face of the proceedings that registry will be, and will remain, the proper registry to control the conduct of the proceedings until it is shown to the Court that it is appropriate to transfer the matter to another registry.
An order transferring a matter from one registry to another in this Court will not be predicated upon criteria such as those required to be satisfied for the purposes of the cross-vesting scheme. (See s.6: Jurisdiction of Courts (Cross-Vesting) Acts 1987.)
The making of such an order will depend upon a consideration of elements of advantage or detriment or prejudice in respect of the preparation or conduct of the trial of the matter that may be raised by any of the parties to the proceeding. After examining and balancing those considerations, a determination of what order will best serve a fair trial of the matter from the point of view of all parties and the efficient use of the Court's resources and facilities will follow.
In the present application the relevant matters to be considered are those which were raised in an earlier unsuccessful application of like nature by the respondent and other matters that have arisen since that application.
A short resume of the conduct of the proceedings expresses most of the relevant issues.
The applicants reside in Western Australia. The respondents carry on business in Sydney as dealers in antiques. The applicants were customers of the respondents' business. The applicants have commenced proceedings in the Perth Registry of the Court seeking remedies in respect of transactions for the purchase of antique furniture and objet d'art from the respondents. The applicants have refused to accept delivery of the items purchased which remain in Sydney. The application for relief rests upon alleged misrepresentations as to the origin, history or antiquity or value of items purchased. The conduct of the proceedings has progressed according to directions made by this Court and they are now at a point where the matter may be set down for trial in Perth in October next. The applicants have instructed solicitors in Perth and the respondents have instructed solicitors who operate a national practice. Summaries of the evidence to be led from expert witnesses have been exchanged pursuant to the directions of Court and show that one of those proposed witnesses resides in Perth and four in Sydney. The summaries of proposed evidence were prepared after each expert had inspected the purchased items. Expert evidence of market value will relate to market values in Sydney. The respondents base their application upon the apprehension that the Court will either accede to the request from the respondents that the Court should conduct a view of the purchased items after the expert evidence has been received or upon the need of expert witnesses called by the respondents to have the items in dispute present in Court to make their evidence meaningful to the Court.
The applicants deny that a view will be either necessary or desirable and maintain that the evidence of experts will be assessed according to its cogency and persuasion based on the experience of the witness without any need for the Court to sight the items in question. It is also said that adequate assistance will be provided to the witnesses and the Court by the use of photographs.
The applicants say that if the respondents make a successful application for a view in the course of the hearing, or for part of the hearing to be conducted in Sydney, the applicants will bear the costs occasioned by such an order and, therefore, the respondents will not be disadvantaged if the present application to transfer the matter to the Sydney Registry is refused.
It is impossible to carry out a fine balancing of all the competing considerations. It may be said that the outlay of expenditure to bring witnesses and the disputed items to Perth would probably outweigh the cost incurred in taking witnesses, solicitors and counsel to Sydney. It may also be said that as a venue for trial Sydney would be more convenient for the respondents and their witnesses.
However, the applicants have the carriage of the action and the onus of proof and a trial on proof would be more convenient for them.
If it were inevitable that the Court would accede to a request that it view the disputed items, the balance may fall in favour of an order to transfer the matter to the Sydney Registry at this stage assuming that it would be possible for the matter to be listed for hearing in that registry within a reasonable time.
I am not persuaded that an order for a view will be made as a matter of course and it is not apparent that the due conduct of the trial will require the matter to be transferred to Sydney in any event. Therefore, the motion should not be granted at this time.
It has not been suggested that evidence from expert witnesses be presented on video tape and supplemented by oral evidence, but this may be an appropriate case for such a course to be followed if the witnesses wish to illustrate their evidence by reference to particular features of the disputed items. The parties should give consideration to the use of that procedure.
I will permit the respondents to renew their application at, or near, trial either under s.48 of the Federal Court of Australia Act 1976 or O.30 r.6 if they consider that further grounds provide cause for such an application to be made and will reserve the costs of this application.
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