CMA Corporation Limited v McSorley

Link copied
Case Copied 15 min read

FEDERAL COURT OF AUSTRALIA

CMA Corporation Limited v McSorley [2011] FCA 747

Citation: CMA Corporation Limited v McSorley [2011] FCA 747
Parties: CMA CORPORATION LIMITED and CMA RECYCLING PTY LTD v IAN MCSORLEY
File number: NSD 233 of 2011
Judge: ROBERTSON J
Date of judgment: 4 July 2011
Corrigendum: 7 July 2011
Catchwords: PRACTICE AND PROCEDURE – application that proceeding be continued at WA District Registry – application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) s 48
Cases cited: Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 cited
Green v Atlantic International Entertainment Australia Pty Ltd [1998] FCA 1278 applied
Lamb v Hog’s Breath Co [2007] FCA 49 applied
Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227 applied
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 applied
Date of hearing: 27 June 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 33
Counsel for the Plaintiffs: Mr J C Giles
Solicitor for the Plaintiffs: Minter Ellison
Solicitor for the Defendant: Mr H J Paiker of Paiker & Overmeire

FEDERAL COURT OF AUSTRALIA

CMA Corporation Ltd v McSorley [2011] FCA 747

CORRIGENDUM

1.In paragraph 15 of the Reasons for Judgment, in the first sentence, the words ‘“WA silver”’ should read ‘(“WA silver”)’.

2.In paragraph 15 of the Reasons for Judgment, in the third sentence, the words ‘denies, paragraph’ should read ‘denies paragraph’.

3.In paragraph 26 of the Reasons for Judgment, in the last sentence, the word ‘plaintiff’s’ should read ‘plaintiffs’’.

4.In paragraph 30 of the Reasons for Judgment, in the last sentence, the words ‘videolink, may’ should read ‘videolink may’.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        7 July 2011


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 233 of 2011

BETWEEN:

CMA CORPORATION LIMITED
First Plaintiff

CMA RECYCLING PTY LTD
Second Plaintiff

AND:

IAN MCSORLEY
Defendant

JUDGE:

ROBERTSON J

DATE OF ORDER:

4 JULY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The defendant pay the plaintiffs’ costs of the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 233 of 2011

BETWEEN:

CMA CORPORATION LIMITED
First Plaintiff

CMA RECYCLING PTY LTD
Second Plaintiff

AND:

IAN MCSORLEY
Defendant

JUDGE:

ROBERTSON J

DATE:

4 JULY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. The substantive proceedings in this matter were commenced in the New South Wales District Registry of the Court on 3 March 2011.  The present interlocutory application is brought by the defendant in the substantive proceedings, Mr McSorley, and was filed on 20 May 2011.  The application…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read CMA Corporation Limited v McSorley and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] FCA 747
Decision Date

CaseChat Overview and Summary

In the case of CMA Corporation Limited v McSorley, the plaintiff, CMA Corporation Limited, filed an application to dismiss the defendant's request to continue the proceedings at the Western Australia District Registry. The defendant, McSorley, argued for a transfer on several grounds including the location of witnesses, the 'proper' law, and the disparity in resources between the parties. The court was required to decide whether there were sufficient reasons to transfer the proceedings to another registry, considering the distribution of witnesses, the nature of the evidence, and the resources of the parties.

The court found that it was premature to decide on the transfer of proceedings given the limited issues raised in the pleadings and the uncertain nature of the evidence that would be presented. The court noted that many of the defendant's arguments, while relevant, were more pertinent to a forum non conveniens application between different jurisdictions rather than within the same court. Additionally, the court considered that several witnesses, whose testimony might be critical, were not yet confirmed as witnesses and their evidence could potentially be presented via videolink. The court highlighted that it retained the flexibility to conduct parts of the hearing in different locations as the need arose. Given these considerations, the court concluded that there were insufficient grounds to transfer the proceedings at that stage.

The court dismissed the application and ordered that the defendant pay the plaintiffs' costs of the motion. The court found no sound reason to conduct or continue the proceedings elsewhere within the Federal Court system, maintaining that the Federal Court, as a national court, had the authority to manage its own proceedings across different registries. The decision underscores the importance of waiting for clearer evidence and a more developed case before making decisions on the geographical allocation of hearings.

Orders

Orders of the court

1. The application be dismissed.

2. The defendant pay the plaintiffs’ costs of the motion.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do take into account that the defendant has from an early point agitated for a transfer of the proceedings to the Western Australia District Registry. Conclusion The matter of greatest moment in the present application in the exercise of the unfettered power to which the Full Court in National Mutual referred is the geographical distribution of the witnesses and the expense to the parties. However, in my view, it is too early to say, in light of the limited issues raised on the pleadings, where the number or bulk of the witnesses who will be called to give oral evidence are located, more particularly to what extent that evidence will be controversial, and even more particularly whether and to what extent the credit of any of the witnesses will be involved. I say this because in terms of formal or non-contentious evidence, hearing that evidence by videolink, may well be practicable if desired. It is premature to go further at present into the advantages and disadvantages of taking important evidence by videolink. Perram J recently referred to these matters in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [41]. The Court has the power and capacity to sit in different places and in the course of hearing the matter. I do not rule out the possibility that some part of the evidence may more efficiently be heard in Perth or perhaps in Melbourne. The comparative resources of the parties will then be a relevant factor in considering any such application.Orders For these reasons I dismiss the application. I am not satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. I order that the defendant pay the plaintiffs’ costs of the motion.

Ratio Decidendi

Legal Principle Established

For present purposes, I accept the summary at [8] of Ms Hamilton-Jewell’s affidavit sworn 21 June 2011 that the real issues in dispute between the parties are:1.in relation to the Victorian Silver, whether there was an agreement that permitted Mr McSorley to keep 3% of the proceeds of the sale as a commission; and2.in relation to the WA Silver, whether Mr McSorley has remitted the proceeds of the WA Silver to the plaintiffs and whether Mr McSorley sold silver belonging to him or to the plaintiffs to the Perth Mint.Submissions and consideration In his written submissions the defendant relies on 23 matters in support of the application. They may be grouped by broad subject-matter as follows, taking into account, as submitted today, that one looks at these matters both individually and as to their totality:·where the events occurred;·the ‘proper’ law;·the location of possible or probable witnesses, including the defendant; and·that the resources of the plaintiffs, including financial resources, are greater than the defendant’s. In my opinion many of the 23 matters are directed to issues which, while relevant to an application such as the present, would be of greater force or weight on an issue of forum non conveniens as between competing forums, generally with different legal systems. I note that the letter of 17 May 2011 which broached the question of transfer referred to “the appropriate and convenient forum” being in Western Australia. Here, of course, a different evaluation is necessary because the Federal Court is a national court: see National Mutual at 165 where the Full Court said that in an application such as the present there is no question of this Court declining jurisdiction in ordering that the further conduct of proceedings be at one registry rather than another. Further, it seems to me, at present, that in relation to many of the matters referred to it is not at all clear that they will be issues at the trial. I emphasise that this is my view on the information presently available. For example, neither side has so far established either who will be called as a witness or the nature or length of the evidence of any such person or whether it will be contentious. As to the choice of law provisions on which the defendant relies, it is not clear to me that within the meaning of the relevant clause of the employment agreement the Federal Court of Australia is intended to be excluded. I doubt that the draftsman was distinguishing between State Courts and the Federal Court in Western Australia. In any event that clause, clause 22.2, refers to the parties submitting to the “non-exclusive jurisdiction” of the courts of that State. It is relevant, and I give it weight, that the defendant is an individual who resides in Western Australia. I also accept that it may be that most of the witnesses who may be called on behalf of the defendant are situated in Western Australia. It is not clear which side will call Mr Robbins or Mr Rowe. It may be the defendant. Both of those people are apparently resident in Victoria. However I am not convinced that the eight named, and the several unnamed, persons will be called as witnesses or that, if they are, they will need to give oral evidence or that that evidence could not be given by videolink.