Gregg, Peter v Pahl, David John
[1997] FCA 610
•3 Jul 1997
IN THE FEDERAL COURT OF AUSTRALIA QG 37 of 1997
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:PETER GREGG & JOCELYN GREGG
First Applicants
AND:LION BREWING PTY LTD
ACN 054 360 244
Second Applicant
AND:DAVID JOHN PAHL
First Respondent
AND:DUNCAN SEYMOUR MACGILLIVRAY
Second Respondent
AND:TWO DOGS INTERNATIONAL PTY LTD
ACN 008 151 139
Third Respondent
AND:TWO DOGS ALCOHOLIC LEMONADE PTY LTD
ACN 065 290 708
Fourth Respondent
AND:TWO DOGS HOLDINGS PTY LTD
ACN 071 186 171
Fifth Respondent
CORAM:Drummond J
DATE:3 July 1997
PLACE:Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The proceeding be transferred to the South Australia District Registry.
The applicants pay the respondents' costs, including reserved costs, of and incidental to the notices of motion, save that the respondents are not to recover any costs in respect of their applications in the notices of motion for security for their costs of defending the action.
The applicants pay the respondents' costs thrown away as a result of the amendment to the statement of claim.
The matter be adjourned for further directions to the judge to whom the matter is allocated in Adelaide.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA QG 37 of 1997
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:PETER GREGG & JOCELYN GREGG
First Applicants
AND:LION BREWING PTY LTD
ACN 054 360 244
Second Applicant
AND:DAVID JOHN PAHL
First Respondent
AND:DUNCAN SEYMOUR MACGILLIVRAY
Second Respondent
AND:TWO DOGS INTERNATIONAL PTY LTD
ACN 008 151 139
Third Respondent
AND:TWO DOGS ALCOHOLIC LEMONADE PTY LTD
ACN 065 290 708
Fourth Respondent
AND:TWO DOGS HOLDINGS PTY LTD
ACN 071 186 171
Fifth Respondent
CORAM:Drummond J
DATE:3 July 1997
PLACE:Brisbane
REASONS FOR JUDGMENT
This series of applications by the respondents has resolved itself into an application to transfer the proceedings to the South Australia Registry of the Court.
It is apparent from the amended statement of claim and the other material before me that this, in broad terms, can be described as quintessentially a South Australian action. The events giving rise to the causes of action arose in South Australia. South Australian legislation is relied on, at least in support of one of the causes of action. The nature of various of the claims, which involve passing off issues, are such as to make it probable that there will be a number of non-party witnesses called or at least proofed who are residents of South Australia. The first respondent, who apparently is at present residing in the United States, intends, so I am told from material before me, when he returns to Australia, to resume residence in South Australia. The second respondent resides in South Australia and the third, fourth and fifth respondents have their places of business in South Australia. The first respondent has a South Australian solicitor. The second to fifth respondents have Melbourne solicitors.
On the other side, the applicants reside in Queensland. A person, Mr Howard, who is a party to an agreement under which the applicants became investors in the brewery business that operated in Adelaide (the focus of the events out of which the action arises) and who is said to be a likely witness for the applicants also resides in Queensland. The applicants' accountant, who almost certainly will be a necessary witness, resides in Queensland and the applicants are represented by Queensland solicitors.
The test to be applied is that stated in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 to the following effect:
"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."
As to the first matter, the interests of all the parties, and the second matter, the ends of justice, it seems to be likely that the proceedings will be able to be conducted with least overall cost, subject to one qualification, if they are promptly transferred to Adelaide.
The qualification arises out of my concern as to the extent to which this litigation will involve further interlocutory steps. The only pleading at the moment is the applicants' amended statement of claim. It raises a complicated case. It is therefore not at all improbable, as counsel for the applicants suggests, that there may well be further interlocutory litigation. The applicants point to the apparently strong financial position of the respondents and to the statement by Mr Gregg, the male applicant, that his means are limited. No further information is given. But his means do appear to embrace sufficient to enable him to run the litigation, as he presently conceives it being run, with the assistance of senior counsel. If there is further interlocutory litigation and the case is moved now to Adelaide, the suggestion is that the burden of such litigation will fall upon the applicants to a greater extent than will be the burden of such litigation if the action remains in Brisbane, at least until it is ready for trial.
Counsel for the respondents points out that, although a number of matters were raised for interlocutory determination by the notices of motion filed on behalf of the respondents, they were justified in doing that. The security for costs claim has been resolved by agreement, but in circumstances in which a concession has been made by the natural applicants which will ensure that there is an overlap of issues between the case run by the first applicants and the case run by the corporate applicant, the second applicant. In so far as the notices of motion filed by the respondents attacked the statement of claim, counsel for the respondents points out that attitude has been vindicated by the very extensive amendments to the applicants' pleading that that attack has produced. He submits that, given the responsibility that has been shown to date by the respondents in the interlocutory litigation that they have raised, my concerns about the interlocutory processes of the Court being open to possible hardship for the applicants if the proceedings are transferred to Adelaide do not stand in the way of a decision or should not stand in the way of a decision to transfer the proceedings to Adelaide now. There is, I think, substance in what the respondents say, although the reasonableness of bringing the security application is perhaps questionable in view of the extensive overlap between the cases of the natural and corporate applicants.
Counsel for the applicants makes the point that the action is in its early days. No defence has yet come in. It is suggested that the issues may not be as extensive as might appear from a reading confined to the statement of claim and that few witnesses may need to be called who are resident in South Australia. That seems to me to be largely speculative. I have already indicated that certain aspects of the causes of action relied on by the applicants are very likely, in my judgment, to necessitate the calling of non-parties who will undoubtedly be residents of South Australia.
But here is another factor arising from the Court's decision to adopt the individual docket system of case management, a central feature of which is that the one judge is to have responsibility for the oversight of every case from the moment it is filed to the time judgment is given.
Counsel for the respondents also puts the proposition that applications to change the place of hearing of proceedings should, as a matter of general principle, be made earlier rather than later and there is some substance in that, too.
But it seems to me, for the reasons I have mentioned, particularly in light of the new case management system the Court is in the process of adopting and the South Australian nature of the case, that this proceeding should be transferred to the South Australia Registry of the Court now.
I certify that this and the preceding four
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.
Associate:
Date:3 July 1997
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