Fugro Holdings Pty Ltd ACN 003 010 099 v Tomlinson

[2003] FCA 1633

FEDERAL COURT OF AUSTRALIA

Fugro Holdings Pty Ltd ACN 003 010 099 v Tomlinson [2003] FCA 1633

PRACTICE AND PROCEDURE – application for the transfer of proceedings to another Registry – whether transfer appropriate in the circumstances of the case

Federal Court of Australia Act 1976 (Cth) s48
Federal Court Rules O 10 r 1(2)(f)

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 cited

FUGRO HOLDINGS PTY LTD ACN 003 010 099, AIRESEARCH MAPPING PTY LTD ACN 009 618 124 v PETER JOHN TOMLINSON, ROBYN WELLESLEY TOMLINSON
W11 OF 2003

LEE J

1 AUGUST 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W11 OF 2003

BETWEEN:

FUGRO HOLDINGS PTY LTD ACN 003 010 99
FIRST APPLICANT

AIRESEARCH MAPPING PTY LTD ACN 009 618 124
SECOND APPLICANT

AND:

PETER JOHN TOMLINSON
FIRST RESPONDENT

ROBYN WELLESLEY TOMLINSON
SECOND RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

1 AUGUST 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The proceedings be transferred to the Queensland Registry, pursuant to s 48 of the Federal Court Act 1976 (Cth) and O 10 r 1(2)(f) of the Rules of the Federal Court. 

2.        The costs of the motion be the costs in the cause of the respondents.

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	W11 OF 2003

BETWEEN:

FUGRO HOLDINGS PTY LTD ACN 003 010 99
FIRST APPLICANT

AIRESEARCH MAPPING PTY LTD ACN 009 618 124
SECOND APPLICANT

AND:

PETER JOHN TOMLINSON
FIRST RESPONDENT

ROBYN WELLESLEY TOMLINSON
SECOND RESPONDENT

JUDGE:	LEE J
DATE:	1 AUGUST 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1. This is a motion for an order that the proceeding be transferred to the Queensland Registry, pursuant to s 48 of the Federal Court Act 1976 (Cth) and O 10 r 1(2) of the Rules of the Federal Court (“the Rules”).  In effect, the respondents seek to change the “proper place” of the proceeding.

2. In about September 2001 the first applicant (“Fugro”), the registered office of which is in Perth, purchased  from the respondents, who reside in Brisbane, all shares of the second applicant (“Airesearch”).  The registered office of Airesearch is in Brisbane. On 13 January 2003 Fugro commenced a proceeding in this Registry against the respondents.  In the statement of claim filed Fugro claimed that in deciding to enter the agreement to purchase the shares in Airesearch, it relied on conduct of the respondents that was misleading or deceptive and thereby suffered loss. 

3. The respondents gave early notice of the motion and this is not a case where there has been delay in seeking to change the “proper place”.  In the time that has elapsed between commencement of the proceeding and the hearing of the motion, preparation of the matter for trial has proceeded with knowledge by all parties that an order would be sought that the “proper place” be altered to the Queensland Registry.

4. The motion is not to be confused with an application to determine the place and manner of trial.  Management of a proceeding may be continued at the “proper place”  without any determination being made as to the appropriate place, or places, for the trial of the matter.  The essential question to be resolved will be where is the appropriate place for management of the litigation, having regard to all relevant circumstances and to the need for efficient use of the Court’s resources.  The relevant principle was stated by a Full Court of this Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162 as follows:

   ‘...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.’

5. It is not often that the order sought is made.  Any Registry of the Court is likely to be as well placed as another to conduct management of litigation commenced in that Registry.  However, if in truth the proceeding has a greater connection with another Registry it may be appropriate to order that there be a change in the “proper place”.

6. Of course, of relevance to that issue, as well as to the separate question of the appropriate place for trial, is the convenience of the respective parties and of prospective witnesses.  Having had regard to the material, I am satisfied that there is a real risk of inconvenience and disadvantage being visited upon the respondents if the matter were to be continued in this Registry for the purpose of management.  At its heart, this is a Queensland matter.  Fugro, to suit its convenience, has progressively transferred some of the records and equipment of Airesearch to this State, but at the outset this was a Queensland matter.  The parties understood as much when they negotiated the contract for the sale of the shares which provided that Queensland was to be the locus for any litigation that might arise between the parties out of, or in respect of, that contract. 

7. It is likely that the applicants will be less inconvenienced than the respondents if the matter is transferred from the Western Australia Registry to the Queensland Registry.  As to the place of trial, that will be a matter to be assessed by the judge in whose docket the matter is placed. 

8. In respect of witnesses, decisions on these motions do not turn upon the preponderance of domicile of the various witnesses.  More important, in determining the “proper place” for the matter, will be how preparation of the matter for trial will be best addressed. 

9. A factor also that requires consideration in resolving that question is the matter of mediation.  This Court places great emphasis on the need for parties to address mediation.  The Court has available in each Registry officers skilled in that art.  It may be accepted that mediation is more likely to succeed where the parties are able to attend in person any mediation proceeding.  It would be more convenient for the respondents for that to be done in the Queensland Registry, and no great inconvenience to officers of Fugro and Airesearch to travel to Queensland for that purpose, having regard to the national character of the business conducted by those companies. 

10. Having regard to all of the foregoing circumstances I am satisfied that this is one of those unusual cases where it is appropriate to make an order to change the “proper place” and I will make an order in terms of the motion.  Costs of the motion should be costs in the cause of the respondents. 

I certify that the preceding ten numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:
Dated:              8 September 2004

Counsel for the Applicants:	D M Stone
Solicitor for the Applicants:	Williams and Hughes
Counsel for the Respondents:	B O’Donnell QC
Solicitor for the Respondents:	McCullough Robertson Lawyers
Date of Hearing:	1 August 2003
Date of Judgment:	1 August 2003