Ejueyitsi v Commissioner of Police (Western Australia)
[2012] FMCA 775
•24 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EJUEYITSI v COMMISSIONER OF POLICE (WESTERN AUSTRALIA) | [2012] FMCA 775 |
| PRACTICE AND PROCEDURE – Change of venue. |
| Federal Magistrates Court Rules 2001, r.8.01 |
| Australian Competition and Consumer Commission v Pauls Ltd (2002) FCA 71 National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 |
| Applicant: | VINCENT BABATUNDE EJUEYITSI |
| Respondent: | COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
| File Number: | MLG 243 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 24 August 2012 |
| Date of Last Submission: | 24 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Teoh |
| Solicitors for the Respondent: | State Solicitors Office (WA) |
ORDERS
That the Respondent’s application for change of venue is allowed.
That pursuant to rule 8.01 of the Federal Magistrates Court Rules 2001 the proceedings be transferred to the Perth Registry of the Federal Magistrates Court.
That all extant Applications be adjourned to a date and time to be fixed by the Perth Registry.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 243 of 2012
| VINCENT BABATUNDE EJUEYITSI |
Applicant
And
| COMMISSIONER OF POLICE (WESTERN AUSTRALIA) |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Respondent has sought an order pursuant to r.8.01 of the Federal Magistrates Court Rules 2001 to change the venue of the hearing from Victoria to the Perth District Registry of the Federal Magistrates Court. Rule 8.01 provides as follows:
(1)A party who files an application or response in a proceeding may apply to have the proceeding heard in another Registry of the Court.
(2)In considering an application, the Court must have regard to:
(a)the convenience of the parties; and
(b)the limiting of expense and cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
In considering what other matters might be relevant, I have taken into account the decision of O’Loughlin J in the matter of Australian Competition and Consumer Commission v Pauls Ltd[1] where he says, in quoting National Mutual Holdings Pty Ltd v The Sentry Corporation[2]:
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 be defined more closely or more precisely.[3]
[1] Australian Competition and Consumer Commission v Pauls Ltd (2002) FCA 71.
[2] National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155.
[3] Australian Competition and Consumer Commission v Pauls Ltd (2002) FCA 71 at [6].
O’Loughlin J went on to say:
The interests of the parties include such matters as the place of residence or business of the parties and their witnesses, the nature of the proceedings, the place where the cause of action arose and any matters of public interest.[4]
[4] Ibid at [7].
In this matter both parties have submitted that the location represents inconvenience for them. The Respondent indicates that the inconvenience for them was caused by the fact that they have witnesses who are based in Western Australia and who would be required to be called.
The Applicant, for his part, says that he has witnesses who he wishes to call who are based in Victoria.
The balance of convenience in and of itself might be important but it is not the ultimate test. In this matter it has been suggested by the Applicant that the matter could be dealt with by way of video evidence. In my view, it is not an appropriate way to examine and cross-examine witnesses using video evidence, unless there is absolutely no other alternative, and already we have seen in the proceedings so far today the difficulties in ensuring that documents are before all parties at the relevant time.
I can only consider that, in terms of the convenience to the Court and the administration of the Court, the hearing of evidence via video is not the most appropriate way for the matter to be dealt with.
While the matter has been to mediation it has not been listed for final hearing.
Further, the crucial issues to me in this matter are these. This matter arose in Western Australia. The incidents occurred in Western Australia and the cause of action is therefore in that state. Second, they raise significant allegations against the Commissioner of Police for Western Australia or the Western Australian Police. In my view, it is a matter of public interest that such allegations be dealt with in Western Australia rather than in Victoria.
For those reasons, I will grant the application. The matter will be transferred to the Perth Registry of the Federal Magistrates Court where the application by the Respondent for the proceedings to be summarily dismissed will be dealt with by a Federal Magistrate located in that Registry.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 30 August 2012
2
3
1