D'Alessandro v Bynoe Harbour Pearl Co Pty Ltd
[1999] FCA 343
•25 MARCH 1999
FEDERAL COURT OF AUSTRALIA
D'Alessandro v Bynoe Harbour Pearl Co Pty Ltd [1999] FCA 343
PRACTICE AND PROCEDURE – “Proper place” of proceeding – balance of convenience – efficient administration of the Court – ends of justice.
Federal Court of Australia Act 1976 (Cth) s 48
National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1988) 19 FCR 155 at 162
VINCENT D'ALESSANDRO v BYNOE HARBOUR PEARL CO PTY LTD & ORS
VG 3434 of 1998
WEINBERG J
MELBOURNE
25 MARCH 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 3434 OF 1998
BETWEEN:
VINCENT D'ALESSANDRO
ApplicantAND:
BYNOE HARBOUR PEARL CO PTY LTD
First RespondentADAM ANTHONY MATTHEW MIOCEVICH
Second RespondentWAYNE MANGAN
Third RespondentPAUL MIOCEVICH
Fourth RespondentJUDGE:
WEINBERG J
DATE OF ORDER:
25 MARCH 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The notice of motion dated 9 March 1999 brought on behalf of the respondents be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 3434 OF 1998
BETWEEN:
VINCENT D'ALESSANDRO
ApplicantAND:
BYNOE HARBOUR PEARL CO PTY LTD
First RespondentADAM ANTHONY MATTHEW MIOCEVICH
Second RespondentWAYNE MANGAN
Third RespondentPAUL MIOCEVICH
Fourth Respondent
JUDGE:
WEINBERG J
DATE:
25 MARCH 1999
PLACE:
MELBOURNE
EX TEMPORE REASONS FOR JUDGMENT
There is before the Court an application brought by notice of motion filed on behalf of the respondents to these proceedings to have them transferred from the Victoria District Registry of the Court to the Northern Territory District Registry. The application is brought pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth). That section provides:
“The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.”
There has been filed in support of the motion to have the proceedings transferred an affidavit sworn by the second respondent to the principal proceedings. He contends in substance that the dispute between the applicant in the principal proceedings and the respondents arose in Darwin and concerns events which solely occurred in the Northern Territory.
The first respondent is incorporated and registered in the Northern Territory and conducts all of its business there. The second and third respondents reside in the Northern Territory. The fourth respondent resides in Perth. The only link between the principal proceedings and the Victoria District Registry of the Court is the fact that the applicant in the principal proceedings now resides in Melbourne, though he did reside in Darwin at the time of the events giving rise to these proceedings.
Mr Spargo who appears on behalf of the respondents to the principal proceedings and in support of the notice of motion submits that the balance of convenience favours transferring the matter in its entirety to Darwin. Fewer persons would have to fly from Melbourne to Darwin if transfer were ordered than would have to fly from Darwin to Melbourne if the matter remained in the Victoria District Registry. Moreover, the applicant in the principal proceeding has deposed in his own affidavit in opposition to transfer to having limited funds, and the risk of the respondents not being able to recover costs, if successful in the principal proceedings, would be greater if the matter remained in Melbourne than if it were transferred.
Mr Spargo did not, however, submit that the applicant in the principal proceedings had acted "capriciously" in the sense in which that term was used by the Full Court of the Federal Court in National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1988) 19 FCR 155 at 162, in having instituted the proceedings in Melbourne.
Mr Cullen who appeared for the applicant in the principal proceedings, the respondent to this notice of motion, did not dispute that the balance of convenience favoured the conclusion that the proceedings be transferred. He submitted, however, that this was not decisive but merely "a relevant consideration" (see Sentry (supra) at 162).
He drew attention to the principles laid down by the Full Court in Sentry at 162 including the need for the court to be satisfied that there is "sound reason" to direct that the proceeding be conducted or continued elsewhere before ordering transfer. The starting point is that absent evidence of a capricious claim having been made by the applicant in instituting the proceedings in Melbourne, the place where those proceedings were instituted should continue to be the venue for the trial.
Mr Cullen relied primarily upon evidence given by the applicant in the principal proceedings that his limited assets might make it impossible to continue the litigation if it were transferred to Darwin. He submitted that the following passage from the judgment of the Full Court in Sentry at 162 should govern the disposition of this application:
“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.”
Mr Cullen submitted that the ends of justice favoured leaving the matter where it is, given that his client maintains that his impecuniosity was brought about by the conduct of the respondents, which forms the basis of his claim against them. He submitted that it had not been demonstrated that the case could, in all the circumstances, be conducted more suitably in Darwin than in Melbourne, and that bearing in mind the interests of all the parties, the prejudice to his client of transferring the matter outweighed any possible disadvantage to the respondents in maintaining the status quo.
The considerations in favour of and against transfer seem to me to be reasonably finely balanced. In the end, however, I have come to the view that the risk that the applicant might be shut out from pursuing his claim if this matter were transferred to Darwin provides a sufficient reason for concluding that the ends of justice are best served if the matter remains in the Victoria District Registry. As it happens, that also coincides with “the most efficient administration of the Court”, to use the formulation of the Full Court in Sentry at 162, because there are no judges of the Court permanently resident in Darwin, and a judge and his or her staff would have to be flown there to enable the case to be conducted in that city.
The Court therefore orders that the notice of motion dated 9 March 1999 brought on behalf of the respondents be dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate:
Dated: 25 March 1999
Counsel for the Applicant: Mr GD Cullen Solicitor for the Applicant: Kahns Counsel for the Respondent: Mr M Spargo Solicitor for the Respondent: Ward Keller Date of Hearing: 25 March 1999 Date of Judgment: 25 March 1999
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