Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd (No 5)

[2006] FCA 505

FEDERAL COURT OF AUSTRALIA

Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd (No 5)
[2006] FCA 505

PRACTICE AND PROCEDURE – venue of trial – 15 witnesses resident in Papua New Guinea – other witnesses in Queensland and Victoria – proceedings commenced in Perth Registry – counsel and solicitors in Perth – large quantities of discovered documents transported to Perth – no significant economic benefit derived from conduct of proceedings in Brisbane – direction that venue of trial be Perth – liberty to apply for particular witnesses to be adduced by video link

FUBILAN CATERING SERVICES LIMITED (INCORPORATED IN PAPUA NEW GUINEA), MINERAL RESOURCES STAR MOUNTAINS LIMITED (INCORPORATED IN PAPUA NEW GUINEA) v COMPASS GROUP (AUSTRALIA) PTY LTD (ACN 000 683 125), EUREST (SOUTH PACIFIC) LIMITED (INCORPORATED IN PAPUA NEW GUINEA) and COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM
COMPASS GROUP (AUSTRALIA) PTY LTD (ACN 000 683 125), EUREST (SOUTH PACIFIC LIMITED (INCORPORATED IN PAPUA NEW GUINEA) and COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM) v MOROCCO HOLDINGS PTY LTD and WILLIAM FENWICK
WAD 252 OF 2003

FRENCH J
5 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD252 OF 2003

BETWEEN:

FUBILAN CATERING SERVICES LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
FIRST APPLICANT

MINERAL RESOURCES STAR MOUNTAINS LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND APPLICANT

AND:

COMPASS GROUP (AUSTRALIA) PTY LTD
(ACN 000 683 125)
FIRST RESPONDENT

EUREST (SOUTH PACIFIC) LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND RESPONDENT

COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM)
THIRD RESPONDENT

COMPASS GROUP (AUSTRALIA) PTY LTD
(ACN 000 683 125)
FIRST CROSS CLAIMANT

EUREST (SOUTH PACIFIC) LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND CROSS CLAIMANT

COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM)
THIRD CROSS CLAIMANT

and

MOROCCO HOLDINGS PTY LTD
(ACN 061 311 984)
FIRST CROSS RESPONDENT

WILLIAM FENWICK
SECOND CROSS RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

5 MAY 2006

WHERE MADE:

SYDNEY

1.        The trial of the action is to be heard in Perth.

2.Liberty to the parties to apply for the evidence of any witness to be adduced by video link.

3.Any application to adduce evidence by video link is to be made on or before 1 June 2006 provided that if the parties are in agreement, a consent order in that regard may be filed.

4.Costs of the directions relating to venue to be the respondents’ costs in any event.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD252 OF 2003

BETWEEN:

FUBILAN CATERING SERVICES LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
FIRST APPLICANT

MINERAL RESOURCES STAR MOUNTAINS LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND APPLICANT

AND:

COMPASS GROUP (AUSTRALIA)
FIRST RESPONDENT

EUREST (SOUTH PACIFIC) LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND RESPONDENT

COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM)
THIRD RESPONDENT

COMPASS GROUP (AUSTRALIA) PTY LTD
(ACN 000 683 125)
FIRST CROSS CLAIMANT

EUREST (SOUTH PACIFIC) LIMITED (INCORPORATED IN PAPUA NEW GUINEA)
SECOND CROSS CLAIMANT

COMPASS GROUP PLC (INCORPORATED IN THE UNITED KINGDOM)
THIRD CROSS CLAIMANT

and

MOROCCO HOLDINGS PTY LTD
(ACN 061 311 984)
FIRST CROSS RESPONDENT

WILLIAM FENWICK
SECOND CROSS RESPONDENT

JUDGE:

FRENCH J

DATE:

5 MAY 2006

PLACE:

SYDNEY

REASONS FOR RULING ON VENUE OF TRIAL

1. The trial of this action has been set down for 15 days commencing 12 June 2006.  The applicants are companies incorporated in Papua New Guinea (PNG), the second applicant being the sole shareholder of the first.  The three respondents are companies which are incorporated respectively in Australia, PNG and the United Kingdom. 

2. The proceedings arise out of a contract for the provision of catering services at the Ok Tedi mine in PNG.  The applicants say, in effect, that they represent indigenous people in PNG who wanted to secure the contract in order to create employment and training opportunities for their communities.  They say that they engaged the respondents to prepare a tender proposal under which the respondents would manage the contract for the applicants and that subsequently a management agreement was entered into. 

3. The applicants have raised a variety of allegations and causes of action against the respondents.  These range from pre-contractual conduct by way of representations said to have been misleading or deceptive to the receipt of secret commissions and breaches of fiduciary duty on the part of the respondents.  Other causes of action are also raised together with a cross-claim.

4. A question has arisen about the venue for the hearing of the action.  The applicants say that they have some 15 witnesses who are resident in PNG.  Another two witnesses reside in Queensland and one in Victoria.  They ask that so much of the trial as involves the PNG and Queensland witnesses be heard in Queensland.  The respondents do not agree with that proposal. 

5. The respondents point out that the proceedings were commenced in Perth in 2003 and that pre-trial case management has progressed in Perth ever since.  A mediation was held in Perth.  A container load of documents for inspection was provided to the applicants, having been sent from PNG through Queensland to Western Australia.  The respondents say they are not willing to ‘relocate their entire trial operation’ because the applicants want to call witnesses all of whom resided in PNG at the time that the proceedings were instituted.  The counsel and instructing solicitors for the parties are all in Perth.

6. There was some affidavit evidence from the solicitors for the parties about the costs of conducting the trial in Perth and Brisbane respectively.  The applicants’ solicitor says that the minimum costs to the applicant for the travel of 18 witnesses from interstate to Perth would be $33,642 based on return economy class airfares.  On the other hand a travel consultant with the Flight Centre, Perth has told the solicitors for the respondents that the lowest cost would be $23,460. 

7. Whether the witnesses are flown from PNG to Queensland and then to Perth or simply from PNG to Queensland, the PNG cost is an unavoidable constant.

8. The alternative of hearing the witnesses in Perth by video link from Brisbane is said to involve a cost of about $20,400 based on an average of two hours each for the evidence of the witnesses, including their cross examination at an estimated rate of $600 per hour. 

9. If the witnesses were to remain in Brisbane and the trial were to be heard there, then the cost would be increased by the travel cost for the solicitors and counsel and also, of course, for the trial judge and court staff. 

10. It is unfortunate that the matter of venue was not considered at a much earlier stage when the parties were instructing their solicitors.  Had the proceedings been commenced in the Queensland Registry and Queensland solicitors and counsel engaged, the additional expense of travel between Brisbane and Perth could have been avoided.  However the case is complex.  A large number of documents has been discovered and inspected.  It would be unreasonable and uneconomical for the parties now to have to change their legal representation simply to save the cost of solicitors and counsel travelling between Perth and Brisbane.  In my opinion, it is clear that the trial of the action will most economically and expeditiously be conducted in Perth.  Another benefit of the retention of Perth as the trial venue is that it will not be necessary to break up the hearing between opening and evidence, nor to transfer significant numbers of documents back to Queensland.

11. Should it be desirable to adduce the evidence of any particular witness by video link from Brisbane then an application for directions can be made in that regard.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honorable Justice French.

Associate:
Dated:             5 May 2006

Counsel for the Applicants:

Mr PE Clifford and Mr AP Rumsley

Solicitor for the Applicants:

Alan Rumsley, Commerial Disputes Lawyer

Counsel for the Respondents and Cross Claimants:

Mr ML Bennett and Mr I Curlewis 

Solicitors for the Respondents and Cross Claimants:

Counsel for the First and Second Cross-Respondents:

Lavan Legal

Mr TM Retallack

Solicitor for the First and Second Cross-Respondents:

Hicks Retallack

Dates of written submissions:

21 and 26 April 2006

Date of Judgment:

5 May 2006