Franks, P.m. v Ransea P/L

[1993] FCA 621

JUDGES CHAMBERS,

FEDERAL COURT OF AUSTRALIA,

450 LIlTLE BOURKE STREET,

Js AUSTRALIA rL	MELBOURNE. 3000
-'.',,>>\5z::<:<CC-

6 September 1993

Sonia Cornale
Federal Court of Australia
Principal Registry
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia,

Cairns Festival Faire Ptv Ltd v m F C Limited

No. NG 3183 of 1993

I enclose a copy of the judgment delivered by his Honour Mr Justice Heerey in the above matter on Friday 3 September 1993.

A diskette record of the catchwords, minutes and reasons for judgment is also enclosed.

This judgment is for general distribution.

Yours sincerely,

David Brennan

Associate to Heerey J

enc.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO. NG 877 of 1992

GENERAL DIVISION 1

Between:  PHILLIP MAURICE FRANKS
First Applicant

And:  NLNSEA PTY LTD & ORS
Respondent

- 9 S E F l993

AUST~ALIA
PRINCIPAL

RZISTRV

EX TEMPORE JUDGmNT

EINFELD J SYDNEY 18 JUNE 1993

This is an application by several of the respondents in the proceedings commenced in this Court in November 1992 to transfer the proceedings to the Federal Court in Brisbane for hearing. Judged by the orders made in previous directions hearings, the matter is now ready or close to being ready for hearing in the Court in Sydney. There have in fact been four directions hearings in the Court, the first one of which was on 17 December

last one was only related to the motion to transfer the matter	1992 and the last one of which was on 23 April 1993, although the
to the Queensland Registry of the court.
In the circumstances of the matter, I am not very impressed by the idea that the case should be transferred to Brisbane, partly for the reasons that I have just given, namely that the matter is ready for hearing and the subject matter of transfer has only been raised very recently. So far as the evidence that has been filed in support of the motion is concerned, the majority of the parties and the effective subject matter of the dispute are all Queensland-based. Although in law this is an argument about shares in a company, in substance the proceedings relate to matters concerned with the ownership of land in Queensland. In fact the defence to the proceedings raises issues under Queensland property law butthe matters raised are not unfamiliar to lawyers in this state and seem to have a near or identical equivalent in New South Wales law.
On the other hand, so far as concerns the evidence in the case proper, and from the directions and the absence of any request for any alternative or substitute directions, it seems that all the intended evidence has been filed. From this evidence can be discerned that the witnesses to be called are evenly distributed between New South Wales and Queensland and one of the Queensland witnesses has filed an affidavit to say that he has no objection to the case being heard in Sydney. Moreover, the proceedings have been started in Sydney and have gone through their
until quite recently. Those facts in total would not make out interlocutory stages here without anybody raising any objection
a case for the transfer of the matter to Queensland. However, ultimately these matters come down to fairly fine points of convenience and the case has one additional complication that really must be considered and which I raised with counsel in the course of argument. Some three months after the proceedings were commenced in the Federal Court in Sydney, proceedings were commenced in the Supreme Court of Queensland by the first respondent to these proceedings against some of the other parties to the proceedings in the Federal Court. The substantive claim in the Queensland Supreme Court is made by this first respondent as plaintiff against this applicant as one of the defendants. On the face of it, the proceedings are different, but when analysed they really relate to the same dispute. There are some different parties in the Queensland proceedings and as I have been informed, all of the different parties are New South Wales residents, two companies and two individuals.
There has apparently been no request to the Queensland Supreme Court to cross-vest that matter to the Federal Court. I am quite satisfied that the resolution of either of these two cases will resolve the issues of dispute between these parties, even though the forms of the actions are different and some of the allegations are different. That much is not disputed by counsel for the parties at the bar table here. It is certainly the stuff the cross-vesting legislation was designed to deal with. It is quite wrong that these parties should try to litigate their
avoid that in this particular case. disputes in two different courts and something must be done to
Whilst it is true that the applicant and one of the respondents who has filed an affidavit of evidence in the Federal Court proceedings are Sydney-based, they are also defendants in the proceedings in Queensland and will obviously have to go to Queensland to defend them, not merely physically in the sense of
attending the hearing but presumably to instruct lawyers to file pleadings and attend to their interests.
The party to whom I referred as living in Queensland but who is willing to come to Sydney for the hearing is also a defendant in the proceedings in Queensland. I can do nothing to compel or even influence the future progress of the proceedings that have commenced in the Supreme Court of Queensland. But there must certainly be taken into account on this motion the fact that those proceedings were commenced after the Federal Court proceedings by a party to the Federal Court proceedings who obviously knew that the Federal Court proceedings were already under way and that they had made progress in interlocutory terms. Moreover, until this motion for transfer of the matter, that particular party who commencedthe Queensland proceedings did not seek to do anything about moving these proceedings to Queensland and even today does not apply for their cross-vesting although counsel has frankly admitted that it would not be an unreasonable course to take.
Although it is only marginally relevant, I suppose I should take account of the fact that the Federal Court proceedings are
apparently ready for the fixing of a date for hearing and that if the matter is cross-vested to the Queensland Supreme Court, it may be that a later hearing will be obtained than might be the case if the matter is left in this Court. However, the question that really has to be determined is whether this case should remain in the New South Wales Registry of the Federal Court, not what might happen to it otherwise. That issue does not involve
a serious canvassing of what will happen to the case if it is cross-vested elsewhere.

It is relevant to take into account the delay by the first respondent in bringing this motion before the Court; the fact that the first respondent commenced the Supreme Court of Queensland proceedings some three months after the Federal Court proceedings had been commenced; the fact that the first respondent here has not applied for the consolidation of the two proceedings by way of a cross-vesting order; and the fact that it has waited until the case is almost ready for hearing to attempt to move this case to Brisbane. These matters give rise to a suspicion that the first respondent is acting, at least partly, under the impetus of delaying the conclusion of this litigation. That is a factor which ought to weigh against any discretionary order that it seeks if that order will have a delaying effect. I believe it will.

This is a finely balanced matter and there is much to suggest	that the matter should leave New South Wales but in all the
circumstances I have decided that a case has not sufficiently been made out for a change of venue and that the motion should therefore be refused. I order that the respondents pay the applicant's cost of the motion.