Chadwick, Jillian Margaret v Hest Australia Ltd

[1996] FCA 746

IN THE FEDERAL COURT OF AUSTRALIA    )
  )
VICTORIA DISTRICT REGISTRY          )       No. No. TG 11 of 1996
  )
GENERAL DIVISION  )

B E T W E E N:

JILLIAN MARGARET CHADWICK
  Applicant
  - and -

HEST AUSTRALIA LIMITED

First Respondent
  - and -

NEXIS PTY LTD
  Second Respondent
  - and -

ARTHUR APTED, HELEN HARRIS, CHERYL HYDE, DENNIS JONES,
     ALEX OLIVER, CHRIS RANDALL, DAVID REES, ANGELA ENSLIE,
        DON GOOD, JOHN GRIFFITH, VIV PADMAN, JOAN POVONE,
     LEE ROLPH and TONY SMITH as the Trustees of the HEALTH
        EMPLOYEES  SUPERANNUATION TRUST AUSTRALIA (HESTA)
  Third Respondents
JUDGE:     Heerey J

DATE:     12 July 1996

PLACE:     Melbourne

REASONS FOR JUDGMENT

The respondents apply under O 30 r 6 for a direction that the proceeding be transferred to the Victoria District Registry of the Court. 

The applicant claims to be a beneficiary of a superannuation fund of which the various respondents are either trustees or administrators.  The applicant claims that she has become totally and permanently disabled and that the respondents have refused her payment in accordance with the terms of the deed.  There is a further claim under Part V of the Trade Practices Act 1974
(Cth)  of conduct allegedly misleading her as to her entitlement to benefits under the fund. 

The material put forward by the respondents in support of this application is, I think it is fair to say, skimpy in the extreme.  An affidavit was sworn by Mr Rodney Lamplugh, a Melbourne solicitor, in which he expressed the view that:

This proceeding should be transferred to the Victorian Registry of the Federal Court.

Opinion evidence of that kind is not receivable.  Mr Lamplugh then proceeded to depose that the registered office and principal place of business of the first respondent is at Melbourne.  The third respondents are the individual trustees and they reside in all States of Australia;  four reside in Victoria, two in Tasmania and the remaining eight in other States.  However, there is no indication why any of the trustees should be witnesses at all.  Mr Lamplugh's affidavit proceeds:

Should this matter proceed to trial the first respondent's witnesses who are employees of the first respondent all reside in Victoria as do the majority of the third respondents.

There is no attempt to identify the witnesses Mr Lamplugh has in mind either by name or by reference to the kind of evidence they might give.  I was told from the Bar table that evidence would be called as to the internal procedures of the respondents.  I find it very difficult to see how such evidence could be receivable.  In any case, the onus is on the party seeking the change of venue to make out a clear and specific case of an unreasonable burden it will suffer if the proceedings are not
transferred.  Other material advanced on behalf of the respondent gets no where near to the required degree of particularity.  Mr Lamplugh also deposed that:

The respondents take the view that the agreement which constitutes the relationship between them and the applicant was made in Victoria and the application for membership was received by the first respondent at its head office in Melbourne, Victoria.

The view of the respondents is, of course, not the point.  In any case, the substance of the matter seems to be that the applicant became a member of the scheme through her employee, the Hobart District Nursing Service, and she sent her contributions from Tasmania, and the misrepresentations alleged in para 14 of the statement of claim were all in written form and received by her in Tasmania.  So purely in terms of which State has the most connection with this matter, the respondents have in my view failed to show that that is Victoria rather than Tasmania.

In any case, the applicant makes out quite a detailed case of hardship for her which would in all probability prevent her from proceeding with the matter were it to be transferred to Victoria.  She is not employed and is in receipt of no income.  Her husband works part time as a security officer and he has some health problems.  Their combined income is $250 per week.  They have reached some satisfactory arrangement with their present solicitors for the conduct of this matter and fear - with some justification I would have thought - that they would not be able to reach similar generous arrangements with solicitors in Melbourne.

The applicant's affidavit specifies a number of medical witnesses who may well need to be called at the trial, including nursing staff from Calvary Hospital, a psychologist, a physiotherapist and several doctors who are named, including a specialist physician and neurosurgeon.  The charges by those medical practitioners if they had to travel to Melbourne to give evidence could total $14,200.  So the hardship on the applicant were this matter to be transferred to Victoria greatly outweighs any hardship on the respondents by having the matter remain in Tasmania.  Indeed, I am not persuaded that there is any hardship at all for the respondents if that is to occur.

The application will be dismissed with costs.  It does not seem to me to be an application of any merit.  The issues raised in this matter are not going to be litigated again.  So it seems an appropriate case for ordering that the respondents pay the applicant's costs to be taxed and paid forthwith under O 62 r 3(2).  In other words, the payment of costs does not have to await the outcome of the case.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:          Mr B Ayliffe

Solicitor for the applicant:        Ayliffe & Ayliffe

Counsel for the respondent:         Mr J Palerno

Solicitor for the respondent:       Roberts & Partners

Date of hearing:  12 July 1996