Comeau v Libbesson

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FEDERAL COURT OF AUSTRALIA

Comeau v Libbesson [2019] FCA 1577

File number(s): VID 819 of 2019
Judge(s): ANDERSON J
Date of judgment: 25 September 2019
Catchwords:

PRACTICE AND PROCEDURE – application to transfer proceedings from the Victoria District Registry to the New South Wales District Registry pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) – where applicants are Canadian and respondents are based in New South Wales – where likely witnesses are based in Canada or New South Wales – where minimal connection between dispute and Victoria

Held: application granted – proceeding transferred to the New South Wales District Registry
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M(1), 37M(3), 48, 48(1)
Cases cited:

Atrum Coal NL v Moran [2015] FCA 1530

Auschem Pacific Group Pty Ltd v Tismor Health & Wellness Pty Limited [2019] FCA 1216

Australasian Jet Pty Ltd v Air Affairs (Australia) Pty Ltd [2017] FCA 452

Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71

Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22; 156 FCR 444

Custance v SC Admin Pty Ltd [2017] FCA 511

Cycles & Wheelman Pty Ltd & Ors v Beltech Corporation Ltd (1988) 80 ALR 279

Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrators Appointed) (in liq) [2009] FCA 227

National Mutual Holdings Pty Ltd v The Sentry Corporation [1988] FCA 133; 19 FCR 155

Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2017] FCA 1616

TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronic Pty Ltd, in the matter of TCL Airconditioner (Zhongshan) Co Ltd [2017] FCA 1015

Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (In Liq) v Commissioner of Taxation [2018] FCA 1739

Wepar Nominees Pty Ltd v Schofield [2013] FCA 920
Date of hearing: 23 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 22
Counsel for the Applicants: Ms N J Hickey
Solicitor for the Applicants: Davies Collison Cave Law
Counsel for the Respondents: Ms A M Folie
Solicitor for the Respondents: EXM Law

ORDERS

VID 819 of 2019
BETWEEN:

FELIX COMEAU

First Applicant

ALCOHOL COUNTERMEASURES SYSTEMS CORP.

Second Applicant
AND:

LES LIBBESSON

First Respondent

GUARDIAN INTERLOCK SYSTEMS AUSTRALASIA PTY LTD (ACN 062 932 932)

Second Respondent

JUDGE:

ANDERSON J

DATE OF ORDER:

25 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.Pursuant to section 48 of the Federal Court of Australia Act 1976 (Cth), the proceeding be transferred to the New South Wales District Registry of the Federal Court of Australia.

2.The applicants pay the respondents’ costs of and incidental to the respondents’ interlocutory application dated 27 August 2019 and filed 29 August 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

  1. This proceeding was commenced in the Victoria District Registry of this Court…

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Details
Case
[2019] FCA 1577
Decision Date

CaseChat Overview and Summary

In the matter of Comeau v Libbesson, the respondents, Libbesson and Guardian, sought an order for the proceeding to be transferred from the Victoria District Registry to the New South Wales District Registry of the Federal Court of Australia pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth). The applicants, Comeau and ACS, commenced proceedings against the respondents alleging breaches of agreements and misleading and deceptive conduct. The respondents filed an interlocutory application to transfer the proceeding to New South Wales, citing the minimal connection between the dispute and Victoria, and the location of the likely witnesses in New South Wales and Canada. The applicants opposed the transfer on the basis of the presence of service centres in Victoria.

The court considered the matters referred to in the parties' submissions and affidavits. The court was satisfied that the balance of convenience weighed in favour of the proceeding being transferred to the New South Wales District Registry. The court found that the proceeding was brought by Canadian applicants against an individual respondent living in New South Wales and a corporate respondent operating its business from premises in New South Wales. The subject matter of the dispute was more closely connected to New South Wales and Canada than Victoria, and the communications between the applicants and respondents in the course of their business dealings were either in person in Canada or by telephone, written correspondence or email between New South Wales and Canada. Moreover, the likely witnesses were based in New South Wales and Canada. The court found that the applicants' resistance of the transfer application was not supported by the evidence, and the location of the applicants' solicitors' offices was not a significant factor in the decision.

The court granted the respondents' interlocutory application and ordered that the proceeding be transferred to the New South Wales District Registry of the Federal Court of Australia. The court also ordered that the applicants pay the respondents' costs of and incidental to the transfer application. The court noted that the balance of convenience must be sufficiently pronounced to warrant positive action to change the status quo, and generally, there must be a sound reason to direct a proceeding to be conducted or continued elsewhere. The court found that the balance of convenience in this case was sufficiently pronounced to warrant the transfer of the proceeding to the New South Wales District Registry.

Orders

Orders of the court

1. Pursuant to section 48 of the Federal Court of Australia Act 1976 (Cth), the proceeding be transferred to the New South Wales District Registry of the Federal Court of Australia.

2. The applicants pay the respondents’ costs of and incidental to the respondents’ interlocutory application dated 27 August 2019 and filed 29 August 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The respondents seek an order under s 48 of the Federal Court of Australia Act 1976 (Cth) (Act) that this proceeding be transferred to, and continue in, the New South Wales District Registry of the Federal Court of Australia. For the reasons below, I am satisfied that the balance of convenience weighs in favour of the proceeding being transferred to the New South Wales District Registry.Background On 31 July 2019, the applicants commenced this proceeding by way of an originating application and concise statement. In summary, the applicants allege the following:(a)the first applicant, Mr Comeau, is a Canadian businessman and specialist in the development of alcohol interlock devices and the proprietor of the second applicant, ACS;(b)the first respondent, Mr Libbesson, is an Australian citizen and managing director of the second respondent, Guardian, an Australian company that supplies alcohol interlock programs to road traffic authorities in Australia;(c)in about 1993, it was agreed between Mr Comeau and Mr Libbesson that Mr Comeau by his company would provide to Mr Libbesson all of the hardware and software in order to market and distribute the alcohol interlock devices in the Australasian region (1993 Agreement);(d)Mr Libbesson would install and maintain the alcohol interlock devices and use his best endeavours to promote, distribute and sell the devices within the Australasian region; (e)the terms of the 1993 Agreement included that:(i)Mr Libbesson and Guardian would not compete or engage in activities prejudicial to the sale of the devices in the Australasian region;(ii)Mr Libbesson and Guardian would keep confidential certain information made available to them by the applicants; and(iii)the parties would give reasonable notice to each other of their intention to terminate the 1993 Agreement;(f)by further agreement made on or about 17 November 2005, the parties renewed certain terms and extended their agreement until December 2020 (the Agreement);(g)the applicants allege that the respondents wrongfully terminated the Agreement without giving reasonable notice and engaged in misleading and deceptive conduct contrary to the Australian Consumer Law by continuing to promote their businesses under, or by reference to, certain brand names even though the relationship between the applicants and the respondents had ceased. The respondents have not yet filed a response to the applicants’ concise statement.Respondents’ interlocutory application The respondents by their interlocutory application dated 27 August 2019 seek an order pursuant to s 48 of the Act that the proceeding be transferred from the Victorian District Registry of the Court to the New South Wales District Registry of the Court. The terms of s 48 are set out below at [11]. In support of their application, the respondents filed an affidavit of a solicitor, Nathan Croot. Mr Croot deposed generally to the additional costs which the respondents will incur if the proceeding is heard in Victoria rather than New South Wales. He also deposed to the fact that he had, on behalf of the respondents, sent the letters that, according to the applicants’ concise statement, terminated the Agreement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am consequently satisfied that the facilitation of the just resolution of the dispute between the parties according to law, as quickly and inexpensively and efficiently as possible, requires the positive action of changing the status quo. In my view, the determination of the issues between the parties, and the most efficient administration of the Court, taking into account the overarching purpose of the civil practice and procedure provisions governing this Court, is best met by the proceeding being transferred to the New South Wales District Registry.Conclusion For these reasons, the respondents’ interlocutory application will be granted. Pursuant to s 48 of the Act, the proceeding will be transferred to, and continued at, the New South Wales District Registry of the Court. I also order that the applicants pay the respondents’ costs of and incidental to the transfer application.

Ratio Decidendi

Legal Principle Established

Ultimately, the balance of convenience as to the proper Registry for the conduct of the proceeding must be sufficiently pronounced to warrant positive action to change the status quo: Cycles & Wheelman Pty Ltd & Ors v Beltech Corporation Ltd (1988) 80 ALR 279 at 281 per Gummow J, quoted in, amongst other decisions, Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 at [17] per O'Loughlin J and Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [10] per Besanko J. Generally, there must be a sound reason to direct a proceeding to be conducted or continued elsewhere: Sentry Corporation at 162, cited in Mortimer at [15] per McKerracher J.Consideration Having considered the matters referred to in the parties’ submissions, both written and oral, and the matters deposed to in the affidavits referred to above, I am satisfied that the balance of convenience weighs in favour of the proceeding being transferred to the New South Wales District Registry of the Court. In reaching this conclusion, I am particularly influenced of the following matters:(a)this proceeding is brought by Canadian applicants against an individual respondent living in New South Wales and a corporate respondent operating its business from premises in New South Wales;(b)this proceeding concerns a dispute arising out of a long-standing business arrangement between the parties such that the subject matter of the dispute is more closely connected to New South Wales and Canada than Victoria; (c)apart from the location of the team members of the applicants’ solicitors working on this proceeding, there is no other connection between the matters in dispute in this proceeding and Victoria. The respondents do have 31 service centres in Victoria (in addition to service centres in all other states and territories of Australia). However, Mr Libbesson provided uncontested affidavit evidence that:(i)he was not aware of any interlock systems being shipping from or received in Victoria;(ii)he did not believe that any individuals at service centres will be able to give evidence in relation to the agreements pleaded by the applicants; and(iii)he was not aware of anyone in Victoria who could provide relevant evidence about the issues pleased by the applicants.Moreover, I do not view the newspaper articles raised by the applicants, as outlined above at [10], as lending material weight to the applicants’ resistance of the transfer application;(d)the applicants’ concise statement makes no connection between the matters in issue in the proceeding and Victoria. In particular, it does not connect the alleged breaches of the agreements to Victoria. For instance, there is undisputed evidence that it was Mr Croot, a Sydney-based solicitor acting on behalf of the respondents, who sent the letters which the applicants say terminated the Agreement. Neither does the concise statement express that the alleged misleading and deceptive conduct by the respondents to have taken place in Victoria (although there is reference to the respondents engaging in such conduct through promotion of their businesses generally);(e)the communications between the applicants and the respondents in the course of their business dealings were either in person in Canada or by telephone, written correspondence or email between New South Wales and Canada;(f)the likely witnesses are based in New South Wales and Canada:(i)the applicants have not yet determined their witnesses in the proceeding beyond two Canadian based witnesses, including Mr Comeau. These witnesses will need to travel to Australia for the hearing. It is no more onerous for those witnesses to travel to Sydney than Melbourne; and(ii)three of four potential witnesses for the respondents are based in Sydney, with the fourth based in Adelaide who regularly travels to Guardian’s office in Sydney; and(g)the applicants’ solicitors, DCC, have offices in Sydney as well as Melbourne, amongst other locations. Their primary means of obtaining instructions from the applicants is by telephone and by email. This will not be made any more difficult or onerous if the proceeding is transferred to the New South Wales District Registry. Moreover, I note in this regard that, in the age of national firms and modern technology, the location of the parties’ legal representatives is, generally speaking, accorded little weight: Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [12] per Besanko J, citing Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22; 156 FCR 444 at [29] per Mansfield J. See also Australasian Jet Pty Ltd v Air Affairs (Australian) Pty Ltd [2017] FCA 452 at [21] per Markovic J.