D'Anglers' Paradise Pty Ltd v MMI General Insurance Australia Ltd

[1998] FCA 702

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 302 of 1997

BETWEEN:	D'ANGLERS PARADISE PTY LIMITED APPLICANT
AND:	MMI GENERAL INSURANCE AUSTRALIA LIMITED RESPONDENT

JUDGE(S):	BRANSON J
DATE:	26 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

HER HONOUR:   I turn then to the question of transfer.  On 19 August 1997 I delivered ex tempore reasons for decision on an application made by the respondent for an order pursuant to O 10 r 1(2)(f) of the Federal Court Rules that this proceeding be transferred from the New South Wales District Registry to the Queensland District Registry of the Court.  On that day I said:

“Balancing the respective inconvenience of the two parties should the proper place of the matter remain in Sydney, it seems plain that the respondent's inconvenience is the greater.  On the other hand, Mr Loiero, a director of the applicant, has sworn an affidavit in which he deposes to fears with respect to his personal safety and the personal safety of his wife if they are required to spend time in Queensland.  I treat that matter very seriously.  Because of that matter, I am not prepared at this stage to direct that the proper place of the proceedings become Queensland.  Such a direction would have the consequence that the applicant would be seriously inconvenienced if Mr and Mrs Loiero, or one of them, do or does not spend time in Queensland.  It is, however, early in the life of the proceeding.  I do not doubt that investigations in the matter, including investigations into the matters said to give rise to concerns as to the personal safety of Mr and Mrs Loiero are continuing.  It will be open to the respondent to move again to have the proper place of the proceeding transferred to Queensland should additional evidence come into its possession on the issue of the risk to the personal safety of Mr and Mrs Loiero which is deposed to in Mr Loiero's affidavit.”

I refused the application.  The respondent has now moved again to have the proper place of the proceeding transferred to the Queensland District Registry of the Court.

The appropriate test now, as it was in August 1997, is that formulated by the Full Court in National Mutual Holdings Pty Ltd v Sentry (1988) 83 ALR 434. At 442 the Full Court said as follows:

“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 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.”

It continues to be plain, indeed it may now be plainer than it was in August 1997, that this case is more suitable to be heard in Brisbane than in Sydney.  Not inconsiderable additional costs are likely to be incurred at trial if the trial takes place in Sydney rather than in Brisbane.  The respondent proposes to rely on the evidence of 58 witnesses.   It may be assumed that a good number of them will be required for cross‑examination.  All of them reside in Brisbane or south east Queensland.  Whilst it may be possible for some of them to be cross‑examined by video-link, as to the more important of them, their personal attendance at court is likely to be required in the interests of justice.

The events out of which the proceeding arises all took place in Queensland.  The contract of insurance which is at the heart of this dispute between the parties was entered into in Queensland.  The claim made under the contract of insurance was made in Queensland. The assessment and investigation of that claim by the respondent has been undertaken in Queensland by Queensland officers of the respondent.  Although the applicant is registered in New South Wales, it was carrying on business in Queensland at the times relevant to this proceeding.  Its directors then lived in Queensland although they have since moved to Sydney.

So far as the efficient administration of the Court is concerned, it appears that the transfer of the proceeding from Sydney to Brisbane will now have little effect on such administration.  The preparation of the matter for hearing is nearing completion.  The timetable set by the Court for the filing of affidavits has now expired.   Although I understand that some affidavits are still outstanding, the process of the filing and exchange of affidavits of evidence will soon be completed.  Discovery and inspection of documents has been given and taken and no application for leave to file and serve a notice to answer interrogatories has been made within the time allowed for such a step.

It appears that the only further necessary involvement of the Court in pre‑trial proceedings will be the making of directions for the efficient conduct of the hearing itself.  Little interference with efficient administration will result from the proceedings now moving into the docket of another judge.

As to a likely hearing date, in view of the time estimate given by the parties for the hearing of approximately four weeks, it does not appear that there is any reason to think that the matter could be heard and determined more expeditiously in Sydney than in Queensland or indeed the reverse.  Although I could make three weeks available in September of this year, I do not have a longer free period in my diary until the New Year.  I understand that there are judges resident in Brisbane who are in a position to list a four week trial in the New Year at about the same time as I would be able to do so were the proceeding to remain in New South Wales.

The crucial issue is thus again, as it was in August last, that of the fear expressed by Mr and Mrs Loiero about their safety should they be required to go to Queensland.  As to that there is now further evidence available.  In an affidavit sworn on 21 May 1998 Mr Loiero has deposed at paragraph 22 under the heading, “The final threat that made us leave Queensland”,  as follows:

“On or about July 1995, two male persons who I believe were police (plain clothes) came to the front door of my former residence at 28 Cumberland Way, Buderim.  They said words to the effect:

"You're making too much noise.  Start learning to shut up or else you'll be leaving town in a pine box."

As a result of this threat and all the others, Julie and I decided it would be safer if we left Queensland permanently.  Soon after, Julie and I moved all our belongings (including fixtures of the store) to Sydney.”

Under cross-examination Mr Loiero gave evidence that in fact he and his wife did not leave Queensland permanently until approximately December 1995 or perhaps early 1996.  He indicated that pressures of business made the delay in their permanent departure necessary.

I note further that Mr and Mrs Loiero returned to the Sunshine Coast in about September 1997 for a few days, to visit a seriously ill nephew.  I place no weight on the fact of this trip which took place in worrying circumstances.  However, Mr Loiero acknowledged in evidence that during this trip he returned to his former place of business and, as I understand him, that he either resided in or visited his former residence at this time.  Moreover, during the course of this trip he and his wife openly ate lunch at cafe premises near the applicant's former place of business.

I take these matters into account in assessing the extent of the fear that Mr and Mrs Loiero allege that they entertain about being in Queensland.  I also take into account reasonable precautionary measures which Mr and Mrs Loiero could undertake in the interests of their personal safety if they are required to return to Queensland, including the step, if necessary, of their seeking the assistance of local police.  The possibility that, this long after the events which gave rise to this proceeding, such local police might have had any involvement in those events seems to me to be remote.

I note further that counsel for the applicant has agreed that it would be appropriate for the evidence of the more important of the respondent's witnesses to be taken in Brisbane, and it has been put to me that Mr Loiero would be required to be in court to instruct the applicant's legal representatives.  I understand this to involve the acceptance by Mr Loiero of his travelling to Queensland for at least some time for the purpose of the trial of this proceeding.

Having weighed up all of the material placed before me on the application, I conclude that it is appropriate for the proceeding to be transferred to the Queensland District Registry of this Court and I so order.  The costs of the application for transfer will be reserved to the trial judge, together with the costs of the earlier application, so that such costs may be assessed at the end of the day when the judge has the benefit of all of the evidence.   Subject to such costs, no order for costs will be made as to the notice of motion filed on 1 April 1998.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            

Counsel for the Applicant:	B Slowgrove
Solicitor for the Applicant:	Dennis & Co
Counsel for the Respondent:	C E K Hampson QC with P Lane
Solicitor for the Respondent:	Dunhill Madden Butler
Date of Hearing:	26 May 1998
Date of Judgment:	26 May 1998