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

[1997] FCA 1230

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NG 302 of 1997
  NOT FOR DISTRIBUTION

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

JUDGE:  BRANSON J

DATE:  19 AUGUST 1997

PLACE:  SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

HER HONOUR:       In this matter, the respondent has moved 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.   It has done so on the basis of convenience of the management of the matter.  The respondent’s head office is in Brisbane and the documents in its possession relating to this matter are located in its head office.  The witnesses which the respondent wishes to call at the hearing are largely based in Brisbane.  On the other hand, those who control the applicant are currently resident in Sydney with no intention of returning to live in Queensland, and only one of the witnesses who they presently expect to call at the hearing is resident in Queensland.

Balancing the respective inconvenience to 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

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risk to the personal safety of Mr and Mrs Loiero which is deposed to in Mr Loiero’s affidavit.

The application made by notice of motion which was filed on 13 August 1997 is refused.  However, I place   on record the following.   I have made enquiries and ascertained that I will be the hearing judge in this matter.  Subject to the availability of a court room in Brisbane at the time of the hearing of this matter, and subject to any other relevant circumstances that might be put to me at that time, I indicate that I consider that it would be appropriate for a direction to be made nearer the time of trial, if any, that a part of the hearing be conducted in Brisbane to allow the evidence of any witnesses whose evidence can more conveniently be taken in Brisbane than in Sydney, to be taken in Brisbane.

RECORDED            :          NOT TRANSCRIBED

The question of the costs of the application is reserved.

I certify that this and the preceding
one (1) page is a true copy of the
Reasons for judgment of the
Honourable Justice Branson.

Associate:

Date:

Counsel for the applicant:                  M. Condon
Solicitors for the applicant:                Dennis & Co.

Counsel for the respondent:               J.J. Graves
Solicitors for the respondent:             Dunhill Madden Butler (Brisbane)

Date of hearing:  19 August 1997