Charter Pacific Corporation Ltd v Commonwealth Scientific and Industrial Research Organisation

[1992] FCA 764

-364- jQ2-

JUDGMENT MO. .m * . . . . . . . -

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) No. QG 101 of 1992
GENERAL DIVISION	1

BETWEEN: CHARTER PACIFIC CORPORATION LTD

(ACN 003 344 2871

First Applicant

AND: TAMBABROOK PTY LTD

(ACN 052 348 8391

Second Applicant

AND: COMMONWEALTH SCIENTIFIC, AND INDUSTRIAL

RESEARCH ORGANISATION

First Respondent

13 OCT 1992 AND: RESERVE BANK OF AUSTRALIA

FEDERAL COURT OF Second Respondent

AUSTRALIA PRINCIPAL REDISTRY

MINUTES OF ORDER

Spender J.
9 September 1992

Brisbane

THE COURT:

1.    Declines to make the order sought in paragraph 1 of the notice of motion filed 28 July 1992 and in paragraph 1 of the notice of motion filed on 21 August 1992.

2.    Adjourns the notice of motion filed 28 July 1992 and the notice of motion filed on 21 August 1992 in other respects.

within 7 days.

THE COURT ORDERS THAT:

1.    The costs of the notice of motion filed on 28 July 1992 and the notice of motion filed on 21 August 1992, including today's costs, be costs in the proceedings.

2.   Costs of today's directions be costs in the

proceedings.

THE COURT DIRECTS THAT:

1.    The applicants file and serve a reply and answer to the defence and cross-claim of the first respondent and a reply to the defence of the second respondent

2.    The applicants file and serve such further and better particulars as they are prepared to give within 14 days.

3.    Any request for further and better particulars by the applicants be filed and served within 7 days and should be answered within a further 21 days.

4.    All parties make discovery by list within 7 weeks of today's date.

5.   Inspection of documents take place either at the busmess premises of a party or at the solicitor for a party's offlce within a further 21 days.

6.   The matter be set down for review and further directions at 9.30 a.m. on Monday 30 November 1992.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) No. QG 101 of 1992
GENERAL DIVISION	)

BETWEEN: CHARTER PACIFIC CORPORATION LTD

JACN 003 344 2871

First Applicant

AND: TAMBABROOK PTY LTD

JACN 052 348 8391

Second Applicant

AND: COMMONWEALTH SCIENTIFIC AND INDUSTRIAL

RESEARCH ORGANISATION

First Respondent

AND: RESERVE BANK OF AUSTRALIA

Second Respondent

CORAM:	Spender J.
PLACE :	Brisbane
m:	9 September 1992

EX TEMPORE REASONS FOR JUDGMENT

I have before me two notices of motion, one by the
Commonwealth Scientific and Industrial Research Organisation,

filed on 21 August 1992, seeking first, a direction pursuant to

Federal Court Rules that this proceeding be transferred from the	S. 48 of the Federal Court Act 1976 and 0. 10 r. 1(2)(f) of the
Federal Court Registry at Brisbane to the Federal Court Registry at Melbourne and further, or in the alternative, a direction pursuant to S. 48 of the Federal Court Act and 0. 30 r. 6(2) of the Federal Court Rules, that the trial of this proceeding be fixed to take place at the Melbourne Registry of the Federal Court.
The second notice of motion is by the Reserve Bank of Australia, the second respondent in the principal proceedings, seeking similar orders.
The nature of the principal proceedings, and the issues raised are summarised in paragraphs 2 to 7 inclusive of the affidavit of Mr Terence John Healy, filed 21 August 1992. A close connection between the activity leading to this litigation and Melbourne is alleged, but the material in respect of both motions is directed primarily at the geographical location of persons who are said to be relevant witnesses, or who may be relevant witnesses.
I think it important to note that in respect of the affidavits filed on behalf of each of the parties there is a natural caution as to which witnesses might be called. While the present position seems to indicate that the trial would be more efficiently and fairly held in Melbourne, one cannot be confident that that will be the position at this stage of the proceedings,
when the witnesses to be called are necessarily somewhat conjectural.
On the motions, the test to be applied 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. This is the way the Full Court formulated the matter in National Mutual Holdinas Ptv Ltd v The Sentrv Corporation (1988) 19 F.C.R. 155, at 162. As the Court

indicated at that page, there is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. The Court said, however:

" 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? "

The main reason that I am not satisfied that I ought to transfer the proceeding from here to Melbourne at this stage concerns my view as to the entitlement of the parties to be served by those legal representatives in whom they have had confidence, and who have a great familiarity with that party's position in respect of the issues thrown up by the litigation.

It seems to me that wherever the trial is to be held, there will be some disruption to the various parties and their legal representatives. But if the proceedings can be conducted from Brisbane, with the parties having the assistance of their

present legal representatives, wherever they may be based, and	interlocutory matters do not generate inefficiency or great
expense, there seems to be no sound reason to direct that the proceedings have their proper place at Melbourne, at least so far as any interlocutory directions are concerned.
I have indicated my tentative view that on the material at present the trial would most suitably be held in Melbourne. I form that view notwithstanding my acceptance that a serious disruption to the applicants would be caused. Mr Kevin Dart, in

particular, is a key witness who will be centrally engaged in the trial wherever it is held, and a trial in Melbourne will cause some added cost and dislocation to the applicants and to Messrs McCullough and Robertson in their representation.

Having regard to the matters which the Full Court in
National Mutual Holdinas Ptv Ltd v. The Sentrv Corporation

(supra) indicated ought to be considered, I am not minded to make

the orders transferring the proper place of the proceedings from
here to Melbourne.

I decline to make the orders sought in paragraph 1 of the motion filed on 21 August 1992 and in paragraph 1 of the motion filed on 28 July 1992. I adjourn the two notices of motion in other respects and I indicate that the costs of the motions, including today's costs, be costs in the proceedings.

I direct the applicants to deliver a reply and an answer

to the defence and cross-claim of the first respondent and a

reply to the defence of the second respondent within seven days. The applicants are to provide such further and better

particulars as they are prepared to give within 14 days.

Any request for further and better particulars by the applicants is to be filed and served within 7 days and should be answered within a further 21 days.

All parties are to make discovery within seven weeks of today's date by list and inspection is to take place either at the business premises of the party or of the solicitor for that party within a further 21 days. Consistent with what I said in the course of argument, it is my intention that once documents are assembled, they should bear a pencil notation of the discovery number so that they can be inspected in an efficient way, and they can be inspected at the most convenient location for the parties, being either that party's solicitor's office or that party's business premises.

This matter will be listed for review and further directions at 9.30 a.m. on 30 November 1992. The costs of the directions are costs in the proceedings. On that day it may be possible to consider what directions are appropriate as to trial. If that is the case, the adjourned parts of these notices of motion will be considered then.

I cer t i fy t h a t t h i s and t h e ,

p r e c e d i n g	f u r	( 4 )	pages	a r e	a
t r u e	c o p y	o f	t h e	r e a s o n s	f o r

judgment	h e r e i n o f t h e Honourable
Mr	J u s t i c e

-

Date: 9 Septemlfer 1992

Counsel f o r t h e a p p l i c a n t s : Mr J . Muir Q.C. w i t h Mr J. B e l l

i n s t r u c t e d b y :  McCullough & Robertson

Counsel f o r t h e first

r e s p o n d e n t :  Mr A . d r c h i b a l d Q.C. w i t h Mr M .

Derham

i n s t r u c t e d b y :	F r e e h i l l	H o l l i n g d a l e	&	Page
Counsel f o r t h e second

responden t :  M r R. Macaw P.C. w i t h Mr G .

N e t t l e

i n s t r u c t e d by:  H i l l & Tay lo r a s Town Agent f o r

Hall & Wilcox

Date o f Hearing:  9 September 1992