GLP Blackbut Pty Ltd v National Agricultural Services Pty Ltd
[2022] VCC 962
•28 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-00100
| GLP Blackbut Pty Ltd (ACN 600 521 382) | Plaintiff |
| v | |
| National Agricultural Services Pty Ltd (ACN 132 696 596) | First defendant |
| and | |
| Adama Australia Pty Ltd (ACN 050 328 973) | Second defendant |
| and | |
| Autopak Formulators Pty Ltd (ACN 004 013 049) | Third defendant/ Third party |
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JUDGE: | Judicial Registrar Bennett | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | None, on the papers following written submissions provided by the second and third defendants and the plaintiff on 30 May 2022 and 2 June 2022 respectively | |
DATE OF RULING: | 28 June 2022 | |
CASE MAY BE CITED AS: | GLP Blackbut Pty Ltd v National Agricultural Services Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 962 | |
RULING
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Subject:LOCATION OF TRIAL
Catchwords: Trial venue – balance of convenience
Legislation Cited: Australian Consumer Law s7, County Court Civil Procedure Rules 2018 (Vic) rr42.04, 47.01 and 5.08(1), Civil Procedure Act 2010 (Vic) ss9(1)(c), 9(1)(d), 9(1)(f) and 9(1)(g)
Cases Cited:National Mutual Holdings Pty Ltd v Sentry Corp (1988) 83 ALR 434, McCready v Bendigo Health [2014] VSC 565, Wederell v Ballarat Health Services [2014] VSC 636, Birti v SPI Electricity Pty Ltd (No 2) [2012] VSC 482, Leversha v Wrangham (1889) 15 VLR 363
JUDICIAL REGISTRAR:
Background
1The plaintiff carries on a business growing and selling grapes at Merbein, Victoria. This proceeding essentially involves product liability claims by the plaintiff in respect of a bottle of ‘Adama Gibberellic Acid’ (the ‘Product’).
2The statement of claim alleges that the plaintiff purchased the Product from the first defendant, that the plaintiff applied the Product to its grapevines, that the Product contained a substance other than gibberellic acid, that the plaintiff’s grapevines suffered adverse consequences as a result of the application of the Product and the non-application of gibberellic acid, and that the plaintiff suffered loss and damage as a result.
3The plaintiff seeks damages from the first defendant for breach of contract and for breaches of consumer guarantees prescribed by the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (‘Australian Consumer Law’).
4The statement of claim alleges that the second defendant is a manufacturer within the meaning of s7 of the Australian Consumer Law. Against the second defendant, the plaintiff seeks damages for breaches of consumer guarantees prescribed by the Australian Consumer Law, damages pursuant to the Australian Consumer Law for misleading or deceptive conduct and/or representations, and damages for negligence.
5The statement of claim alleges that the third defendant manufactured and supplied the product to the second defendant. Against the third defendant, the plaintiff seeks damages for breaches of consumer guarantees prescribed by the Australian Consumer Law and damages for negligence.
6The defendants deny liability to the plaintiff and make proportionate liability and contribution claims as between one another. It is also alleged that any loss suffered by the plaintiff was wholly or partially caused by contributory negligence on the plaintiff’s part in the management and care of its vines.
7An objections hearing took place before me on 26 May 2022. The plaintiff sought orders pursuant to r42.04 of the County Court Civil Procedure Rules2018 (Vic) (‘County Court Rules’) setting aside an Order 42A subpoena issued by the third defendant to Philmarproc Pty Ltd. In addition to dealing with subpoena objections at the 26 May 2022 hearing, I dealt with issues concerning the plaintiff’s discovery. It is unnecessary to refer further to the subpoena and discovery issues here, save to note that I made orders at the conclusion of the 26 May 2022 hearing setting aside the subpoena and requiring the plaintiff to make supplementary discovery of certain classes of documents.
8As at 26 May 2022, the matter had been set down for trial on 25 July 2022, to be heard as a cause before a judge sitting alone at Melbourne, on an estimate of 3 to 5 sitting days. As I recorded in paragraph A of the ‘Other Matters’ section of the orders which I made on 26 May 2022, and as I indicated to the parties during the hearing, I did not consider it possible for the trial to go ahead on 25 July 2022 having regard to the slippage which had occurred in the interlocutory timetable. Accordingly, paragraph 1 of my orders vacated the trial listed for 25 July 2022.
9The first and second defendants did not appear at the 26 May 2022 hearing, which was essentially a contest between the plaintiff and the third defendant in relation to the third defendant’s subpoena and the plaintiff’s discovery. Because of this, I did not consider it appropriate to make an order on that day fixing a new trial date. Instead, I recorded in paragraph B of the ‘Other Matters’ section of my orders that, subject to paragraphs 2 and 3 of the orders, the Court proposed to make an order ‘re-fixing the matter for hearing in the circuit commencing on 31 October 2022 at Mildura on an estimate of 3-5 sitting days’.
10Paragraph 2 of the orders provided that, if any defendant objected to an order being made in the terms set out in paragraph B of the ‘Other Matters’, they were to notify my associates and provide a brief statement of their reasons for objection by 30 May 2022. Paragraph 3 provided that, in the event that any such objection was received, the plaintiff was to notify my associates whether it pressed for an order in the terms set out in paragraph B and provide a brief statement of the reasons for its position.
11Pursuant to paragraph 2 of the orders, the second and third defendants each objected to the Court’s proposal in relation to re-fixing the trial and provided reasons for their objection. Their position was that the trial should occur in Melbourne and that there were a number of reasons why the trial should not occur as part of the Mildura circuit. No objection was received by the first defendant. The plaintiff provided notice and reasons pursuant to paragraph 3 of the orders, contending that there were a number of reasons why the trial should take place in Mildura.
Parties’ positions
Position of the third defendant
12Citing National Mutual Holdings Pty Ltd v Sentry Corp,[1] the third defendant submitted that the relevant test for the Court to apply was:
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?
[1] (1988) 83 ALR 434, 442 (Bowen CJ, Woodward and Lockhart JJ).
13The third defendant further submitted, again citing National Mutual Holdings, that the relevant factors for the Court to consider were:
(a) where the cause of action arose;
(b) the place of residence of the witnesses and parties;
(c) the expense and convenience of a particular venue;
(d) possible delay; and
(e) the requirement of a view.
14As to the first 4[2] of these 5 factors, the third defendant submitted:
(a) Cause of action: It was accepted that the alleged contamination of the grapevines would have happened in the Mildura region. However, the preparation, packaging and distribution of the Product took place in Sydney and Melbourne. There was no aspect of the cause of action which required the trial to be held in Mildura rather than Melbourne.
(b) Witness and party residence: The third defendant expected to call approximately 4 to 6 lay witnesses who all resided in Sydney, and 7 expert witnesses who resided in Sydney, Brisbane, Ravensbourne (Queensland), Wellington (New South Wales), Harrietville (Victoria) and Penola (South Australia). (I assume that 2 expert witnesses resided in one of these 6 locations.) The third defendant also gave indicative travel times to Mildura from each of these locations, by air or by car as the case may be, ascertained from Google searches.
(c) Expense and convenience: The plaintiff’s solicitors are located in Mildura but the plaintiff will presumably engage Melbourne or Sydney counsel. The first defendant’s solicitors are based in Melbourne. The second defendant’s solicitors and counsel are based in Melbourne. The third defendant’s solicitors and counsel are based in Sydney. Thus, a number of solicitors and counsel would not need to travel if the trial proceeded in Melbourne. Some solicitors, counsel and witnesses would need to travel regardless of whether the trial were held in Melbourne or Mildura, but a trial in Melbourne would involve reduced travel time because it would obviate the need for a further flight from Melbourne to Mildura after a number of those persons had flown from Sydney to Melbourne. Further, having regard to the number of witnesses involved, the trial would need to be specially fixed for hearing before a Commercial Division judge in Mildura, rather than being placed in the running list in the Mildura circuit.
(d) Delay: Senior counsel estimated that the trial may extend for up to 8 days. If additional trial time were required, a circuit may offer less flexibility than if the matter were fixed for hearing in Melbourne. If the entire trial could not be accommodated during the circuit, this could result in the trial being split, with attendant further cost.
[2] The third defendant made no submission in relation to the requirement of a view.
Position of the second defendant
15The second defendant’s submissions were almost entirely identical to those of the third defendant, save for some minor apparent differences as to the potential number of witnesses to be called and the potential trial length. Given the relative infancy of this proceeding and the necessarily inexact nature of ascertaining the identity of witnesses at this stage, I consider it sufficient for present purposes to proceed upon the basis of the position set out in the third defendant’s submissions.
Position of the plaintiff
16The plaintiff cited the decision of J Forrest J in McCready v Bendigo Health,[3] observing that his Honour had affirmed the principle that ‘the balance of convenience must be the primary factor in determining the appropriateness of a venue of a trial’. The plaintiff also relied particularly upon his Honour’s view[4] that ‘it is in the interests of the administration of justice in this state that cases arising out of a particular regional event and involving residents of that region be determined in the local court, if that can be accommodated and a fair trial ensured’.
[3] [2014] VSC 565.
[4] [2014] VSC 565 at [15].
17The plaintiff’s submissions as to the application of the relevant legal principles were made under 3 headings, the first of which was ‘Administration of Justice’. The plaintiff referred thereunder to the fact that 8 other proceedings had been commenced in this Court’s Mildura Registry against the first and second defendants arising from similar facts. Thus, the plaintiff submitted, the underlying damage could reasonably be described as ‘a particular regional event’ and the interests of the administration of justice in Victoria generally required that the trial occur in Mildura.
18The second heading was ‘Balance of Convenience’. Under this heading, citing McCready,[5] the plaintiff submitted that travel-related inconvenience and cost for solicitors and counsel is not a relevant consideration.
[5] [2014] VSC 565 at [26]-[27].
19The plaintiff referred to the business or registered office locations of the plaintiff (Merbein, just outside Mildura), the first defendant (Mildura), the second defendant (Sydney), and the third defendant (Sydney).
20The plaintiff stated that it may call 5 witnesses in total (expert and lay), 3 of whom reside in Mildura, 1 of whom resides in Waurn Ponds and 1 of whom resides in Kialla. (I understand the latter to be an expert witness.) The plaintiff noted that the second and third defendants had identified no witnesses resident in Melbourne.
21The plaintiff also noted that, if the trial judge were to be assisted by a view of the plaintiff’s property in order to understand the evidence, that would not be possible if the trial were held in Melbourne.
22The third heading was ‘Possible Delay’. The plaintiff submitted thereunder that the observations made by the second and third defendants as to possible delays or trial overruns were equally applicable to any trial in a circuit list. The plaintiff also cited paragraph 53.4(b) of the Commercial Division Practice Note (PNCO 1 – 2019), which contemplates trial by a special fixture at a circuit court.
23In conclusion, the plaintiff contended that it was not for the plaintiff to identify a need for the trial to be heard in Mildura; rather, the starting point was that the plaintiff was entitled to a trial at its place of choosing and that choice was to be displaced only if the chosen venue was inappropriate.[6] The plaintiff also submitted that the highest it could be put for the second and third defendants was that ‘witnesses who may be required to travel to Melbourne in any event would be spared the 50 minute flight from Melbourne to Mildura (but not spared the drive from Melbourne airport to the Melbourne CBD)’.
[6] The plaintiff cited McCready [2014] VSC 565 [10].
Consideration
24Rule 47.01 of the County Court Rules provides: ‘Unless the Court otherwise orders, the place of trial of a proceeding shall be determined in accordance with Rule 5.08’. Rule 5.08(1) provides: ‘A writ shall be indorsed with a statement of the place and mode of trial desired’. The writ filed by the plaintiff in the present case stated that the place of trial was Mildura and that the desired mode of trial was by judge alone.
25In McCready, J Forrest J observed[7] that the plaintiff’s choice of trial venue pursuant to r5.08 of the County Court Rules will be displaced if other considerations satisfy a court that the chosen venue is inappropriate. However, his Honour also stated that, on his reading of the authorities, ‘the primary factor in determining the appropriate venue is that of the balance of convenience’ and that ‘the balance of convenience must be the primary factor in determining the appropriateness of a venue of a trial – the choice of the plaintiff is subsidiary to the result of that analysis’.[8] His Honour reiterated the position in similar terms in the later case of Wederell v Ballarat Health Services.[9]
[7] [2014] VSC 565 at [10].
[8] [2014] VSC 565 at [11], [14].
[9] [2014] VSC 636 at [12]-[13].
26In considering the balance of convenience and the interests of justice in McCready and Wederell, J Forrest J examined 3 factors: inconvenience to the lay witnesses and litigants; inconvenience to expert witnesses and additional costs; and community participation. In McCready,[10] his Honour also discussed whether it was relevant to take account of inconvenience to the parties’ legal representatives. I proceed now to consider each of these factors.
[10] [2014] VSC 565 at [17]-[28].
Inconvenience to lay witnesses and litigants
27It currently appears that 4 to 6 lay witnesses will be called by the second and third defendants and that all of those lay witnesses reside in Sydney. Three of the plaintiff’s 4 proposed lay witnesses reside in Mildura. One resides in Waurn Ponds, which is near Geelong and therefore considerably closer to Melbourne than Mildura. None of the proposed lay witnesses reside in Melbourne.
28If the trial proceeds in Mildura, the 4 to 6 Sydney-based lay witnesses will be required to fly from Sydney to Melbourne, and then fly from Melbourne to Mildura. According to the third defendant’s submissions, the flight time from Sydney to Mildura via Melbourne is approximately 2 hours and 50 minutes. I assume that this is the total travel time for the air journey, including the time required to connect between flights in Melbourne, but excluding travel to or from airports and excluding necessary airport check-in times. If the trial proceeds in Melbourne, these witnesses will only be required to fly from Sydney to Melbourne (approximately 1 hour and 30 minutes) instead of having to fly a further leg from Melbourne to Mildura. A trial in Melbourne would therefore appear to save each of these 4 to 6 witnesses approximately 1 hour and 20 minutes of travel time in each direction.
29If the trial proceeds in Mildura, the 3 Mildura-based lay witnesses will not be required to travel. If the trial proceeds in Melbourne, these witnesses will be required to take the 50 minute flight from Mildura to Melbourne. As in paragraph 28 above, I assume that this excludes travel to or from airports and excludes necessary airport check-in times. A trial in Melbourne would therefore appear to cost each of these 3 witnesses approximately 50 minutes of travel time in each direction.
30If the trial proceeds in Mildura, the Waurn Ponds-based lay witness will be required to drive approximately 1 hour to Melbourne from Waurn Ponds and then fly from Melbourne to Mildura, being a total travel time (excluding airport check-in) of just under 2 hours. If the trial proceeds in Melbourne, this witness will only be required to drive to Melbourne from Waurn Ponds. A trial in Melbourne would therefore appear to save this witness just under 1 hour of travel time in each direction.
31The litigants, all of which are corporations, are based in the Mildura region (in the case of the plaintiff and first defendant) and in Sydney (in the case of the second and third defendants). I will proceed upon the assumption that each litigant is likely to have at least one representative attend the trial in order to observe and provide instructions.
32The position of the 2 Mildura-based corporate representatives is the same as that of the Mildura-based lay witnesses referred to in paragraph 29 above. A trial in Melbourne would appear to cost each of these 2 representatives approximately 50 minutes of travel time in each direction. The position of the 2 Sydney-based corporate representatives is the same as that of the Sydney-based lay witnesses referred to in paragraph 28 above. A trial in Melbourne would appear to save each of these 2 representatives approximately 1 hour and 20 minutes of travel time in each direction.
33Therefore, in summary, for the abovementioned persons (lay witnesses and litigant representatives), a trial in Melbourne:
(a) would save 6 to 8 of those persons approximately 1 hour and 20 minutes each of travel time in each direction;
(b) would save one of those persons approximately 1 hour of travel time in each direction; and
(c) would cost 5 of those persons approximately 50 minutes each of travel time in each direction.
Inconvenience to expert witnesses
34I have set out the parties’ positions in relation to proposed expert witnesses in paragraphs 14(b) and 20 above.
35The position of the third defendant’s Sydney-based expert witness is the same as that of the Sydney-based lay witnesses referred to in paragraph 28 above. A trial in Melbourne would therefore appear to save this expert witness approximately 1 hour and 20 minutes of travel time in each direction.
36If the trial proceeds in Mildura, the third defendant’s Brisbane-based expert witness will be required to fly from Brisbane to Melbourne, and then fly from Melbourne to Mildura. According to the third defendant, the flight time for this journey is approximately 7 hours and 30 minutes. Again, I assume that this is the total travel time for the air journey, including the time required to connect between flights in Melbourne, but excluding travel to or from airports and excluding necessary airport check-in times. If the trial proceeds in Melbourne, this witness will only be required to fly from Brisbane to Melbourne (approximately 2 hours and 15 minutes) instead of having to fly a further leg from Melbourne to Mildura. A trial in Melbourne would therefore appear to save this witness approximately 5 hours and 15 minutes of travel time in each direction.
37If the trial proceeds in Mildura, the third defendant’s Ravensbourne-based expert witness will be required to travel to Mildura from Ravensbourne via Toowoomba, Brisbane and Melbourne. The third defendant says that the total travel and flight time for this journey is approximately 8 hours and 23 minutes. If the trial proceeds in Melbourne, this witness, like the witness referred to in paragraph 36 above, will only need to fly from Brisbane to Melbourne but not from Melbourne to Mildura. I proceed upon the basis therefore that a trial in Melbourne would similarly save this witness approximately 5 hours and 15 minutes of travel time in each direction.
38If the trial proceeds in Mildura, the third defendant’s Harrietville-based expert witness will be required to travel to Mildura from Harrietville via Melbourne. The third defendant says that the total travel and flight time for this journey is approximately 5 hours and 8 minutes. If the trial proceeds in Melbourne, this witness will only be required to drive from Harrietville to Melbourne, a journey of approximately 4 hours, instead of also having to fly from Melbourne to Mildura. A trial in Melbourne would therefore appear to save this witness approximately 1 hour of travel time in each direction.
39If the trial proceeds in Mildura, the third defendant’s Penola-based expert witness will be required to travel to Mildura from Penola by car. The third defendant says that the total travel time for this journey is approximately 5 hours and 36 minutes. If the trial proceeds in Melbourne, this witness will be required to drive to Melbourne from Penola, a journey of approximately 5 hours. A trial in Melbourne would therefore appear to save this witness approximately half an hour of travel time in each direction.
40If the trial proceeds in Mildura, the third defendant’s Wellington-based expert witness will be required to travel to Mildura from Wellington via Orange, Sydney and Melbourne. The third defendant says that the total travel and flight time for this journey is approximately 4 hours and 48 minutes. If the trial proceeds in Melbourne, this witness will not need to fly the final leg from Melbourne to Mildura. Having regard to the position of the Sydney-based witnesses discussed in paragraphs 28 and 35 above, I proceed upon the basis that a trial in Melbourne would similarly save the Wellington-based expert witness approximately 1 hour and 20 minutes of travel time in each direction.
41If the trial proceeds in Mildura, the plaintiff’s Kialla-based expert witness will be required to travel to Mildura from Kialla. The third defendant says that this is approximately a 5 hour journey by car. If the trial proceeds in Melbourne, this witness will be required to drive to Melbourne from Kialla, a journey of approximately 2 hours. A trial in Melbourne would therefore appear to save this witness approximately 3 hours of travel time in each direction.
42In summary, a trial in Melbourne would save the abovementioned 7 witnesses travel time in each direction of approximately 1 hour and 20 minutes, 5 hours and 15 minutes, 5 hours and 15 minutes, 1 hour, half an hour, 1 hour and 20 minutes, and 3 hours respectively.
Conclusion regarding witness and party inconvenience
43It can be seen from the discussion above that, looking at the lay witnesses and litigant representatives as a total cohort, a trial in Melbourne would be slightly more convenient. It would save time (and presumably expense) for a greater number of the lay witnesses and litigant representatives and would also save a greater amount of time in total. I therefore consider this factor to militate slightly in favour of a trial in Melbourne rather than Mildura.
44Looking at the expert witnesses as a total cohort, a trial in Melbourne would be significantly more convenient. It would save time (and presumably expense) for every expert witness and, in some instances, the time saving is significant. I therefore consider this factor to militate quite strongly in favour of a trial in Melbourne rather than Mildura.
45Before turning to other factors, it is necessary to make some further observations about McCready and Wederell, having regard to the plaintiff’s reliance upon an aspect of McCready in relation to expert witness inconvenience. In McCready,[11] J Forrest J considered the position of an expert witness who was based in Adelaide and who, therefore, did not reside in either of the potential trial locations, namely, Melbourne or Bendigo. The plaintiff in the present case relied upon this part of his Honour’s reasons at paragraph 10 of its written submissions. The Adelaide witness was in a similar position to a number of the litigant representatives and potential witnesses in the present case; that is, those persons who would be required to travel from interstate either to Melbourne (if the trial is held in Melbourne), or from interstate to Melbourne and then on to a regional centre (if the trial is held in Mildura). His Honour observed that, assuming the expert flew to Melbourne from Adelaide, the travel time by car to Bendigo from Melbourne airport was only about an hour and a quarter greater than the travel time by car to the Melbourne CBD from Melbourne airport. His Honour appeared to have considered that this difference would likely be even smaller after taking into account the time required to find a carpark in the Melbourne CBD. On this basis, his Honour appears to have formed the view that the position of this expert witness was not a matter militating in favour of a trial in Melbourne rather than Bendigo.
[11] [2014] VSC 565 at [21].
46The present case is in my view quite different to McCready. This is not a case where interstate attendees will land at Melbourne airport, get into a car and drive to a destination which is only a little more than an hour further away from the airport than from Melbourne. All parties appeared to proceed on the basis that interstate witnesses would be required to fly to Melbourne and then fly to Mildura. While the duration of the flight itself from Melbourne to Mildura may only be 50 minutes, it appears from the journey estimates provided by the parties that the need to fly the final leg from Melbourne to Mildura would add a considerable amount of time to the total journey for some witnesses, presumably because of the connection time in Melbourne between flights. After landing in Melbourne, the Adelaide witness in McCready could get into a car and commence the drive to Bendigo at any time of their choosing, regardless of when their plane landed in Melbourne. However, a person travelling by plane, rather than by car, on the second leg of their journey does not have this flexibility in relation to the timing of that second leg; rather, they are subject to airline timetables. Accordingly, I do not consider the plaintiff’s position to be supported by this aspect of his Honour’s reasons in McCready.
47In Wederell, J Forrest J considered the position of an expert witness based in Melbourne who was reluctant to travel to give evidence in Ballarat. In the course of concluding that the position of this expert did not militate against the trial being held in Ballarat, his Honour observed[12] that the additional travel time to Ballarat from Melbourne was only an hour to one and a half hours each way by car on a freeway and that Ballarat was no further away in terms of travel time than some of the outer suburbs of Melbourne at peak hour. Significantly, after making this observation, J Forrest J said:[13] ‘I accept that a trip to a more far-flung outpost (such as Mildura or Warrnambool) may involve considerably more inconvenience and cost’.
[12] [2014] VSC 636 at [20].
[13] [2014] VSC 636 at [21].
48It therefore seems to me that, while the Court was readily persuaded in McCready and Wederell that the trials in those cases should be held in regional centres located relatively close to Melbourne, such a conclusion might be less readily reached where it is contemplated that the trial is to occur in a more distant regional centre, having regard to the greater travel time and attendant cost involved. In this regard, I also note that Dixon J in Birti v SPI Electricity Pty Ltd (No 2)[14] rejected the plaintiff’s submission that Wodonga would be a convenient trial location for the experts and instead accepted that ‘there would be significant inconvenience to the experts if they were required to travel to Wodonga rather than being based in Melbourne’.
[14] [2012] VSC 482 at [15(d)].
49I also note that in each of McCready and Wederell, there was only one identified witness who was said to be likely to be inconvenienced by additional travel time as a result of the trial not occurring in Melbourne. In the present case, 12 to 14 of the witnesses (lay and expert) identified to date would incur additional travel time if the trial occurred in Mildura, and in some cases the additional time is substantial. Only 3 of the proposed witnesses would incur less travel time if the trial occurred in Mildura, and in each case the saving is only 50 minutes in each travel direction.
Community participation
50The opportunity for community participation appears to have been a matter of particular significance to J Forrest J in McCready and Wederell. For example, in Wederell, his Honour stated:[15]
As I indicated in McCready, I regard it as highly desirable that residents of Ballarat have the opportunity to watch and, possibly, participate in a trial involving the treatment of a local resident at their local hospital. Justice should be able to be seen to be done in regional, as well as metropolitan, Victoria.
[15] [2014] VSC 636 at [26].
51Both cases involved the treatment of a plaintiff at a defendant hospital located in the regional centre where the trial was proposed to occur and in both cases the plaintiff lived in the region.
52I accept that the present case has some degree of regional connection. The alleged contamination of the plaintiff’s grapevines occurred in the Mildura region. The plaintiff submits that the Sunraysia region is home to some 80% of Australia’s table grape industry and notes that users of the Product have commenced a total of 9 proceedings in the Mildura Registry of this Court in recent years.
53Be that as it may, I do not consider the present case to have the same degree of regional connection or potential need for community participation as was the case in McCready or Wederell. In the present case, the conduct alleged to have given rise to the contamination of the plaintiff’s vines – such as the preparation, packaging/labelling and distribution of the Product – did not occur in the Mildura region. In McCready and Wederell, the allegedly deficient medical treatment, by which the plaintiffs’ loss and damage was said to have been caused, occurred in the region at the defendant hospitals. Moreover, McCready and Wederell both involved important local institutions by which many members of the local community are served and upon which many such persons are reliant.
54I therefore conclude that this factor militates only slightly in favour of a trial in Mildura.
Inconvenience to legal practitioners
55As I have recorded in paragraph 14(c) above, the third defendant relied upon the locations of the parties’ solicitors and counsel as militating in favour of a trial in Melbourne. The plaintiff, as I have recorded in paragraph 18 above, submitted that the question of possible inconvenience to, and costs of travel for, solicitors and counsel was ‘not a relevant consideration’. With respect, I am not sure that J Forrest J expressed the position quite so starkly in McCready. Nor do I read A’Beckett J in Leversha v Wrangham,[16] upon which J Forrest J based his conclusion, as having done so. A’Beckett J said[17] that he would refuse to change the trial venue ‘where it is otherwise appropriate merely on the ground that counsel’s expenses will be greater in the country than Melbourne’. I understand his Honour there to be saying that increased expense to counsel would not of itself justify a change of trial venue, not that it is an entirely irrelevant consideration. Similarly, J Forrest J said[18] that the convenience of counsel and their instructing solicitors was ‘not the test’, but that ‘[t]he case must be looked at as a whole and, particularly, the interests of the litigants should be paramount’. Looking at the case ‘as a whole’ would, in my view, require looking at (rather than treating as wholly irrelevant), amongst other things, additional travel time and expense incurred by solicitors and counsel.
[16] (1889) 15 VLR 363.
[17] (1889) 15 VLR 363 at 364 (emphasis added).
[18] McCready v Bendigo Health [2014] VSC 565 at [27].
56My view in this regard is reinforced by the decision of Dixon J in Birti[19], in which his Honour took into account, amongst other things, the location of the parties’ solicitors and counsel and the additional travel and accommodation costs for those legal representatives if the trial were to be held in Wodonga.
[19] [2012] VSC 482 at [15(a)]-[15(c)], [16].
57Having regard to the location of the parties’ legal representatives as set out in paragraph 14(c) above by reference to the third defendant’s submissions, Melbourne is clearly likely to be a more convenient and less costly location for all solicitors and counsel, save for the plaintiff’s solicitors who are based in Mildura. I consider this to be a factor which also militates in favour of a Melbourne trial.
Relevance of a view
58No party has suggested that a view will be, or even is likely to be, necessary in this case. The highest it was put for the plaintiff was that, if the trial judge were to be assisted by a view, a view would not be possible if the trial took place in Melbourne (see paragraph 21 above). Accordingly, I do not consider this to be a factor which militates in favour of any particular trial location.
Civil Procedure Act considerations
59Unlike J Forrest J in McCready and Wederell, Dixon J in Birti expressly addressed the question of trial location by reference to s9 of the Civil Procedure Act 2010 (Vic). His Honour considered whether holding the trial at Wodonga rather than Melbourne would ‘facilitate the just, efficient, timely and cost-effective resolution of the proceeding’. Having regard to the objects set out in ss9(1)(c), (d), (f) and (g) of the Civil Procedure Act, as applied to the considerations relied upon by the parties in that case, Dixon J was not persuaded that the overarching purpose under the Civil Procedure Act would be better achieved by a trial in Wodonga.[20]
[20] [2012] VSC 482 at [16].
60For substantially the reasons set out above in relation to the balance of convenience factors, I am satisfied that the overarching purpose would be better achieved by a trial in Melbourne than in Mildura. I also accept the third defendant’s submissions, which I have summarised in paragraph 14(d) above, about potential delay and the lack of flexibility associated with listing the matter for trial in Mildura as opposed to Melbourne. Those matters further point toward the overarching purpose being better achieved by a trial in Melbourne.
61Additionally, ss9(1)(c) and (d) of the Civil Procedure Act require the Court to further the overarching purpose by having regard to the efficient conduct of the business of the Court, and the efficient use of judicial and administrative resources, respectively. The Commercial Division of this Court, unlike the Common Law Division of the Supreme Court in which McCready, Wederell and Birti were all entered, and the Common Law Division of this Court, does not regularly send a judge of the Division to circuit locations. Therefore, if the trial of the present case were to occur in Mildura, it would need to be heard by a Common Law Division judge as part of the running circuit list, or be the subject of a special fixture before a Commercial Division judge who would need to be sent to Mildura specifically for this case. I am told by the Commercial Registry that the feasibility of the latter course may also be affected by constraints arising from the limited number of courtrooms available for use in Mildura. Accordingly, I consider a trial in Mildura to less conducive to the attainment of the objects in ss9(1)(c) and (d) of the Civil Procedure Act than the trial being heard in Melbourne by a Commercial Division judge.
Conclusion
62Having regard to all of the circumstances, for the reasons discussed above, I am of the view that the balance of convenience favours the proceeding being listed for trial in Melbourne rather than Mildura. Although I have approached this question by reference to the Victorian authorities to which I have referred above, I consider that approach to be broadly consistent with the passages from the National Mutual Holdings case upon which the third defendant relied and the factors derived from that case set out in paragraph 13 above. I also consider that listing the matter for trial in Melbourne is more likely to facilitate the just, efficient, timely and cost-effective resolution of the proceeding than listing the matter for trial in Mildura.
63Accordingly, and having made enquiries with the Registry as to available trial dates, I will make orders re-fixing the proceeding for trial on 14 November 2022 to be heard as a cause before a judge sitting alone at Melbourne, on an estimate of 5 to 8 sitting days.
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5
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