DC Payments Pty Ltd v FITZPATRICK
[2013] FCCA 1415
•28 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DC PAYMENTS PTY LTD & ANOR v FITZPATRICK | [2013] FCCA 1415 |
| Catchwords: PRACTICE AND PROCEDURE – Application for change of venue. |
| Legislation: Federal Circuit CourtRules, Rule 8.01 |
| National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 83 ALR 434 |
| Applicant: | DC PAYMENTS PTY LTD AND ANOR |
| Respondent: | JENNY FITZPATRICK |
| File Number: | MLG 710 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 28 August 2013 |
| Date of Last Submission: | 28 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenney of Counsel |
| Solicitors for the Applicant: | Ashurst Australia |
| Counsel for the Respondent: | Mr Boyce of Counsel |
| Solicitors for the Respondent: | Sweeney Tiggemann |
ORDERS
The matter remain listed for mediation on 9 September 2013 at 10.00 a.m. at the Melbourne Registry of this Court.
In the event that the matter does not settle at mediation, the matter is to be transferred to the Sydney Registry of this Court for a Directions Hearing on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 710 of 2013
| DC PAYMENTS PTY LTD AND ANOR |
First Applicant
| ATM SOLUTIONS AUSTRALASIA PTY LTD ACN 097 550 519 |
Second Applicant
And
| JENNY FITZPATRICK |
Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
In this matter, Ms JENNY FITZPATRICK, the Respondent to the substantive proceedings and the Applicant in this motion, has sought an order to change the venue of the hearing from Victoria to the Sydney Registry of the Federal Circuit Court. The change of venue provisions are covered by Rule 8.01 of the Federal Circuit CourtRules 2001. That provides:
8.01 Change of venue
(1)A party who files an application or response in a proceeding may apply to have the proceedings heard in another registry of the Court.
(2)In considering an application, the Court must have regard to
(a) the convenience to the parties; and
(b) the limiting of expense and cost of the proceedings; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.[1]
[1] Rule 8.01, Federal Circuit Rules 2001.
In applying that Rule, the Court has traditionally taken into account the matters that were dealt with by the Full Court of the Federal Court in National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 83 ALR 434, (“National Mutual Holdings”) a case that was referred to by DC PAYMENTS PTY LTD, the First Applicant in this matter and the Respondent to the motion, with respect to the transfer. Importantly, the Court in that matter, in dealing with the issue, said this:
(ii)In deciding applications in the nature of “change of venue” in a national court such as the Federal Court of Australia, the test of manifest preponderance of convenience was not appropriate and the proper 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?[2]
[2] (1988) 83 ALR 434 at 435.
That is the test as I would put it in a nutshell.
The Applicant in this matter, that is the Applicant for the change of venue, raises the following issues:
·The Respondent to the substantive proceedings is of limited means,
·She lives on the Central Coast of New South Wales;
·She is the primary carer for her husband who has had significant medical issues which are outlined in an affidavit before the Court; and
·Travelling for her husband is a difficulty, and given her role as carer, it would also create difficulties for her.
The Applicant for the change of venue also refers to the fact that the employment occurred in New South Wales and that all of the witnesses whom she would call are in New South Wales. The Applicant for the change of venue also points out that these witnesses are all third party witnesses, and there would be a cost and inconvenience for those witnesses to have to travel to Melbourne in order to appear.
The Respondent to the motion summarises in the affidavit of
Ms MANDY JANE HOWARD, Legal Counsel – Litigation and Disputes, DC Payments Australasia Pty Ltd (“Ms Howard”) reasons for opposing the transfer of proceeding:
·The Respondent’s contract expressly stated that it was governed by the law of the State of Victoria;
·The First Applicant’s registered office is located in Melbourne, Victoria;
·The First Applicant’s principle place of business is Victoria;
·The First Applicant’s instructors, legal representatives and prospective witnesses of which there are three, reside and work in Melbourne; and
·The policy of the First Applicant is to institute legal proceedings in Melbourne, Victoria, provided there is a legitimate basis for commencing the proceedings in this jurisdiction.
There is no challenge to the fact that there is a legitimate basis for the matter being instituted in these proceedings in this jurisdiction, however, the proceedings have been instituted a Federal Court which obtains its jurisdiction under federal law, although clearly there is an associated jurisdiction with respect to those issues that have been raised concerning the breach of contract and the laws which may apply to that.
In that respect I note the following paragraph from the judgment in National Mutual Holdings where the Court says:
Difficult questions arise where the relevant law in more than one State or Territory of Australia differs in its effect on the rights of the parties. The weight to be given to this factor in determining motions to continue a proceeding at a different place will be considerable where the differences between the laws of the two States or Territories are material and affect significantly the rights of the parties. In some cases, however, it will be difficult for the court to assess at an early stage of a proceeding whether the differences between the two laws will affect the rights of the parties. The effect of differences between the applicable laws made depend, for example upon the exercise of discretions by the court at the trial. It may be that the facts upon which any differences in law will operate will be known only in general terms, for example, as pleaded at the time the court is asked to change the place at which the proceeding is to be heard. These are matters which the court must consider in each case when it becomes relevant to do so.[3]
[3] (1988) 83 ALR 434 at 442.
At this stage, while the Applicant in the substantive proceedings has clearly indicated that the contract is governed by the law of Victoria, it has not as yet in the pleadings, so far as I have been able to ascertain, indicated where if the matter was to be heard in New South Wales it would be improper or impossible for a judge exercising Federal jurisdiction to apply those rules or where indeed the relevant common law in New South Wales differs from that in Victoria.
So I turn therefore to the issues which the Court needs to take into account. The Court must weigh those factors in each case. The residence of parties and witnesses; expenses to parties; the place where the cause of action arose; and the convenience of the Court itself are some of the factors which might be relevant.
The Court in National Mutual Holdings in relation to the questions of the balance of convenience said, “The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case”.[4]
[4] Ibid at 441.
In this case, in my view, weight needs to be given to the balance of convenience for several reasons. One is that the position of the Respondent in terms of her capacity to proceed with these proceedings is different to that of the First Applicant. In particular I take into account the fact that the Respondent is the primary carer for her husband and that to be required to be in Victoria for any extended period of time would create significant difficulties for her.
I also take into account the fact that she has indicated that there will be six to eight witnesses called by her, third parties to the proceedings and all located in New South Wales whereas the Applicant’s witnesses, of which they have indicated there will be three, are all employees of the Applicant itself. I also take into account that the Applicant’s legal representatives, Ashurst, are a national firm and do have offices in Sydney, and that is also a consideration.
Further, the matter has not as yet been listed for trial and while there has been certainly a lot of paperwork in relation to this matter, I cannot see that there is any difficulty in any of that being transferred to Sydney for the substantive hearing. However, I take into account that a mediation has been listed for 9 September 2013. That does not require the involvement of witnesses. The opportunity may be there for this matter to settle at an early stage, and it is in the interests of the administration of justice that that happen. The costs of proceedings in whatever Registry it occurs are reduced if the matter can be resolved before the matter goes to trial.
On that basis my ruling is that the mediation occur in Melbourne as already set down for 9 September 2013. If the matter does not settle at the mediation then the proceedings should be transferred to the Sydney Registry.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 19 September 2013
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