Comeau v Libbesson

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.