Churchman, Justine v Alba Gelati Pty Ltd

[1998] FCA 1223

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 623 of 1998

BETWEEN:	JUSTINE CHURCHMAN APPLICANT
AND:	ALBA GELATI PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

This is a representative proceeding brought pursuant to Part IVA of the Federal Court Act of Australia 1976 (Cth) (“the Federal Court Act”).  The applicant sues for herself and is representing all other persons, who at the date of filing of the application on 24 June 1998 had purchased or consumed ice cream products, which were said to be contaminated, as alleged in the statement of claim.  The action is brought on a number of bases including the Trade Practices Act 1974 (Cth) and also on the basis that the ice cream was not of merchantable quality. The only documents which have been filed prior to the two present applications before me are the application under Part IVA and the Statement of Claim.

The notice of motion, which has been filed by the respondent, seeks an order that the proceedings be transferred to the South Australian District Registry of the Federal Court of Australia pursuant to O 10 r 1 of the Federal Court Rules and that the applicant pay the respondent's costs of the notice of motion.  This application for transfer is resisted by the applicant on the basis, amongst others, that it is premature at this stage, before the proceedings have been advertised or before notification of the proceedings has been made pursuant to ss 33X and 33Y of Part IVA.

It is said for the applicant that at this stage of the proceedings it is not known where persons affected by the breaches alleged in the Statement of Claim are located and that until this is determined it is not appropriate to transfer the proceedings.  One relevant authority in relation to this question is National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155. In this decision of the Full Federal Court, the Court (at 162) said:

"The purpose of the provision in the rules of a ‘proper place’ is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding.”

The reasons then continue:

“The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case.

…

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?”

In a later statement:

“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.”

In the present case, the ice cream in question was supplied in South Australia.  The evidence to date indicates that persons interested in the proceedings are in the number of forty-one and only one of these resides outside South Australia.  The affidavit filed in support of the application states that:

“I am informed by the Respondent, through its Managing Director Mr Frank Matiassi and verily believe that the Respondent’s gelati products are sold and marketed predominantly within the State of South Australia and that four supermarket premises are supplied with the Respondent's gelati products in the Northern Territory.”

It is not stated whether or not the ice cream is supplied outside of South Australia in places other than the Northern Territory.

In seeking to apply the principles laid down in the National Mutual case it seems to me that substantially more information needs to be available before it can be said that it is appropriate to transfer the proceedings to South Australia.

One important matter in the determination of this question is, of course, the consideration that the court is now operating on an individual docket system, the purpose of which is that any proceeding should be administered, so far as possible, by the Judge who is to hear the matter.  This system will not in any way be detracted from, in the present case, if the question of the transfer of the proceedings is stood over to a later date when more information is available.  This would be after the proceedings have been advertised and any more additional persons, who may be interested in the outcome of the proceedings, have been notified and have registered their position.

Accordingly, I am not persuaded that at the present stage it is appropriate to transfer the proceedings to the South Australian District Registry.  Accordingly, I will stand over the question of the transfer and the notice of motion to a later stage of the proceedings.  In my view, however, in relation to the removal application, the applicant has been substantially successful and ought to get her costs up to and including today's decision in relation to the transferral question.

The second notice of motion is brought on behalf of the applicant seeking directions and orders as to the giving of notice of the proceedings to the public under the abovementioned provisions of the Federal Court Act.  This application has been resisted by the respondent on several grounds.  The first of these grounds is that publication of the notice, on the present state of the evidence, is not necessary beyond the State of South Australia.  I have already referred to the persons, who have registered their interest to date. The location of those persons is predominantly in South Australia.  However, in my view, the publication of the notice under Part IVA does not in any way amount to any adverse finding in relation to the position of the respondent company.  The notice simply deals with the circumstance where it is recounted that a claim has been lodged alleging certain breaches on the part of the company and seeks to make contact with the persons so that they can be informed of their rights.

There is no evidence before me which persuades me that publication of this notice will unduly affect the position of the respondent so far as the goodwill and the continuance of the business is concerned.  It seems self evident that there will be some impact and that it will be of an adverse nature.  However, it must frequently follow from the legislation, in any event, that there will be notice of the making of the claim.  The notice, which is sought to be published, points out that the notice relates to the making of a claim and in no way can it be said, on any reasonable reading, to indicate that the claim has been established at this early stage of the proceedings.  It is no more than a reference to the allegations.

A second basis on which the publication of the notice is resisted is by reference to the provisions of section 33C of the Federal Court Act, which refers to the proceedings being brought where seven or more persons have claims against the same person.  It is said that particulars have been requested as to the persons who are said to have the claims and that these particulars have not been answered.  However, there has been tendered to me correspondence from the solicitor for the applicant, Messrs Slater & Gordon, where it is stated in the letter of 6 August 1998 that once advertising has taken place and members are identified, the applicant proposes to provide a schedule of information for each of the group members, including the name of the claimant, the date of consumption and the place and circumstances of consumption.  In these circumstances, I do not consider, having regard to the state of the evidence and this statement by the solicitors for the applicant, that there is any force in the suggestion that the respondent may in some way be prejudiced by not having this information at this stage.

Accordingly I consider, having heard from counsel and looking at the evidence filed in an affidavit form by Mr Grech and Mr Richard Smith, that this is an appropriate case in which to make the directions for publication of the notice. These directions are set out in the minutes of order which have been prepared by the respondent and which I will sign and place with the papers.  The applicant should be awarded her costs in relation to this application.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             17/08/98

Counsel for the Applicant:	Mr J Beach
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr R J Perrignon
Solicitor for the Respondent:	Lawson Downs
Date of Hearing:	17 August 1998
Date of Judgment:	17 August 1998