Custance v SC Admin Pty Ltd - [2017] FCA 511

FEDERAL COURT OF AUSTRALIA
Custance v SC Admin Pty Ltd [2017] FCA 511

File number: SAD 272 of 2016

Judge: BESANKO J

Date of judgment: 16 May 2017

Catchwords: PRACTICE AND PROCEDURE – consideration of an application for transfer of proceeding to another registry pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth) – consideration of the weight to be given to a choice of jurisdiction clause – where contracts containing the relevant choice of jurisdiction clause do not appear to be central to the claims – where applicants’ choice of forum was not capricious – where most, if not all, pleaded conversations and discussions took place in Queensland – where convenience of witnesses numerically favours grant of transfer but not overwhelmingly – where electronic exchange of documents renders document location a neutral factor – where delay a factor but not significant.

Legislation:
Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) s 18

Federal Court of Australia Act 1976 (Cth) s 48

Federal Court Rules 2011 (Cth) r 2.02

Cases cited:
Aquila Resources Limited v Pasminco Limited [2004] FCA 39

Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2012] FCA 1383

KC Park Safe (SA) Pty Ltd and Ors v Adelaide Terrace Investments Pty Ltd [1998] FCA 601

Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227

National Mutual Holdings Pty Ltd and Othersv The Sentury Corporation and Another (1988) 19 FCR 155

Wepar Nominees Pty Ltd v Schofield [2013] FCA 920

Date of hearing: 8 December 2016

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 33

Counsel for the Applicants: Mr A Lazarevich

Solicitor for the Applicants: Piper Alderman

Counsel for the Respondents: Mr P Quinn

Solicitor for the Respondents: Tucker & Cowen Solicitors

ORDERS

SAD 272 of 2016

BETWEEN:
DANIEL PATRICK CUSTANCE

First Applicant

EDISON MIRAZIZ

Second Applicant

THINK LABOUR PTY LTD (ACN 160 554 576) (and another named in the Schedule)

Third Applicant

AND:
SC ADMIN PTY LTD (ACN 168 634 928)

First Respondent

SMART CITY VOCATIONAL COLLEGE PTY LTD (ACN 084 423 585 / ABN 73 084 423 585)

Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

16 MAY 2017

THE COURT ORDERS THAT:
1.The application for an order transferring the proceeding to the Queensland District Registry be dismissed.

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

REASONS FOR JUDGMENT
BESANKO J:
Introduction

This is an application by the respondents for an order under s 48 of the Federal Court of Australia Act 1976 (Cth) (the Act) and r 2.02 of the Federal Court Rules 2011 (Cth) that this proceeding be transferred from the South Australia District Registry to the Queensland District Registry. The applicants in this proceeding are Mr Daniel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Custance v SC Admin Pty Ltd 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: [2017] FCA 511
Decision Date: 16 May 2017

CaseChat Overview and Summary

Custance v SC Admin Pty Ltd involved an application for the transfer of a proceeding from the Sydney Registry of the Federal Court to the Queensland District Registry. The applicants, Custance, sought to transfer the proceeding on the basis that the majority of their witnesses were located in Queensland and the convenience of the witnesses favoured the transfer. SC Admin Pty Ltd opposed the transfer, arguing that the choice of jurisdiction clause in their contracts with Custance should be given weight and that the proceeding was not central to the contracts. The legal issues before the Court included the weight to be given to a choice of jurisdiction clause and the factors to be considered in determining whether to grant a transfer of proceeding under s 48 of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth).

The Court found that the choice of jurisdiction clause in the contracts did not appear to be central to the claims made by Custance. While the clause was a relevant consideration, the Court held that it was not determinative. The Court also considered the convenience of witnesses, which numerically favoured the transfer but was not overwhelmingly so. Additionally, the Court found that the electronic exchange of documents rendered the location of the documents a neutral factor. The Court further noted that while there was some delay in bringing the proceeding, it was not significant. Overall, the Court was not satisfied that the proceeding should be transferred to the Queensland District Registry.

The Court dismissed the application for an order transferring the proceeding to the Queensland District Registry. The Court held that the factors considered did not warrant a transfer of the proceeding. The Court also noted that the delay in bringing the proceeding was not significant and that the electronic exchange of documents made the location of the documents a neutral factor. The Court concluded that the application for a transfer of proceeding should be dismissed. The Court's decision was in line with the relevant provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth).

Orders

Orders of the court

1. The application for an order transferring the proceeding to the Queensland District Registry be dismissed.

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

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

The question whether this proceeding should be transferred is finely balanced. Having considered and weighed the relevant factors, I am not satisfied that it should be transferred. Conclusion The application for an order transferring the proceeding to the Queensland District Registry will be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SAD 272 of 2016
Judge:	BESANKO J
Date of judgment:	16 May 2017
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for transfer of proceeding to another registry pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth) – consideration of the weight to be given to a choice of jurisdiction clause – where contracts containing the relevant choice of jurisdiction clause do not appear to be central to the claims – where applicants’ choice of forum was not capricious – where most, if not all, pleaded conversations and discussions took place in Queensland – where convenience of witnesses numerically favours grant of transfer but not overwhelmingly – where electronic exchange of documents renders document location a neutral factor – where delay a factor but not significant.
Legislation:	Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) s 18 Federal Court of Australia Act 1976 (Cth) s 48 Federal Court Rules 2011 (Cth) r 2.02
Cases cited:	Aquila Resources Limited v Pasminco Limited [2004] FCA 39 Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2012] FCA 1383 KC Park Safe (SA) Pty Ltd and Ors v Adelaide Terrace Investments Pty Ltd [1998] FCA 601 Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227 National Mutual Holdings Pty Ltd and Othersv The Sentury Corporation and Another (1988) 19 FCR 155 Wepar Nominees Pty Ltd v Schofield [2013] FCA 920
Date of hearing:	8 December 2016
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Applicants:	Mr A Lazarevich
Solicitor for the Applicants:	Piper Alderman
Counsel for the Respondents:	Mr P Quinn
Solicitor for the Respondents:	Tucker & Cowen Solicitors