Hoskin v Ernst and Young Services Pty Ltd

[2010] FMCA 947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSKIN v ERNST & YOUNG SERVICES PTY LTD & ORS [2010] FMCA 947

HUMAN RIGHTS – Alleged age discrimination.

PRACTICE AND PROCEDURE – Venue – application to change – mandatory matters for consideration – other relevant matters for consideration.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Federal Magistrates Act 1999 (Cth), ss.3, 42, 45, 52
Federal Magistrates Court Rules 2001 (Cth), r.8.01

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932
Dorrian v Rushlyn Pty Ltd [2010] FMCA 787
Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
National Australia Bank Ltd v Neil (2009) 7 ABC(NS) 357; [2009] FMCA 826
Neil v Reward Property Group Pty Ltd [2008] FMCA 1583
Reynolds v The Minister for Health & Anor [2010] FMCA 843
Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495

M Steele, Federal Magistrates Court Guide Book (Sydney: Thomson Legal and Regulatory Limited)

Applicant: PHILLIP JOHN HOSKIN

First Respondent: ERNST & YOUNG SERVICES PTY LTD

Second Respondent: PAUL FONTANOT

Third Respondent: YING LING LEE

Fifth Respondent: MELANIE BLAIN

File Number: PEG 157 of 2010

Judgment of: Lucev FM

Hearing date: 3 December 2010

Date of Last Submission: 3 December 2010

Delivered at: Perth

Delivered on: 6 December 2010

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms F Cross

Solicitors for the Respondents: Mallesons Stephen Jaques

ORDERS

1. The proceedings be transferred from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry of the Federal Magistrates Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 157 of 2010

PHILLIP JOHN HOSKIN

Applicant

And

ERNST & YOUNG SERVICES PTY LTD

First Respondent

PAUL FONTANOT

Second Respondent

YING LING LEE

Third Respondent

MELANIE BLAIN

Fifth Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application in a Case by the remaining respondents[1] for an order pursuant to r.8.01(1) of the Federal Magistrates Court Rules 2001 (Cth)[2] that the proceedings be transferred from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry of the Federal Magistrates Court.

   [1] The first respondent is Ernst & Young Services Pty Ltd (“Ernst & Young”), the second respondent is Paul Fontanot (“Mr Fontanot”), the third respondent is Ying Ling Lee (“Ms Lee”) and the fifth respondent is Melanie Blain (“Ms Blain”). The application against the fourth and sixth respondents was dismissed at a directions hearing on 11 October 2010.

   [2] “FMC Rules”.

2. The Application in a Case is opposed by the applicant, Mr Hoskin.

3. The Application in a Case is supported by an affidavit from Mr Freeman,[3] a solicitor engaged in the role of Legal Counsel in the Sydney office of Ernst & Young.

   [3] Affidavit of Scott Murray Freeman, sworn 5 November 2010 (“Mr Freeman’s Affidavit”).

4. Mr Hoskin has filed an affidavit in opposition to the Application in a Case.[4]

   [4] Affidavit of Phillip John Hoskin, sworn 19 November 2010 (“Mr Hoskin’s Affidavit”).

Background

1. The background to the Application in a Case is an application alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth),[5] filed with the Court by Mr Hoskin on 1 September 2010. The unlawful discrimination alleged is discrimination on the basis of age. The alleged age discrimination is described as follows in the grounds of application:

   Mr. Phillip Hoskin, who is 52 years old, was employed by Ernst and Young Services Pty Ltd (EYS) as a Senior Manager from November 2006 to 14 April 2009. In March 2008, Mr Hoskin was seconded on a temporary 24-month contract with EYS’s Fraud Investigations & Dispute Services Sydney. Mr. Hoskin claims he was discriminated against by management and staff of EYS because of his age. He claims comments were made about his age by a supervisor, Mr. Paul Fontanot, in work performance meetings on 1 October 2008 and 5 November 2008. Mr. Hoskin claims that no action was taken by EYS when he reported aged discrimination by his supervisor. Mr. Hoskin claims that in December 2008, he was placed on a performance management plan and was denied workplace benefits because of his age. He claims a co-worker named Ying Ling Lee gave him a birthday card that made reference to his age and was indicative of workplace attitudes towards him. Mr. Hoskin claims comments were made about his age in meetings with a supervisor named Mark Voss in or around late February 2009 or early March 2009. Mr. Hoskin claims that he was denied workplace training by EYS between the period 30 June 2008 and 14 April 2009 because of his age. Mr. Hoskin says that on 14 April 2009 he resigned because of ongoing discrimination.[6]

   [5] “AHRC Act”.

   [6] Application, Part B – Grounds of application, para.3.

2. The respondents deny the alleged discrimination and the making of any discriminatory comments alleged in the application. Ernst & Young admits that Mr Hoskin was placed on a performance management plan, but denies that this was due to his age. The individual respondents do not admit any of the claims alleged in this application, save for Ms Lee who admits giving the birthday card to Mr Hoskin, but denies that it was discriminatory. Ernst & Young and Mr Fontanot deny that Mr Hoskin was denied workplace training due to his age. The other individual respondents do not admit this allegation.

Application to transfer to Sydney Registry

Legislation and cases

1. Section 52 of the FM Act provides as follows:

   Venue

   (1)  The Federal Magistrates Court may sit at any place in Australia.

   (2)  The Federal Magistrates Court or a Federal Magistrate may, at any stage of a proceeding in the Federal Magistrates Court, order that:

   (a)  the proceeding; or

   (b)  a part of the proceeding;

   be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Magistrates Court or Federal Magistrate imposes.

2. Rule 8.01 of the FMC Rules provides as follows:

   Change of venue

   (1)   A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.

   (2)   In considering an application, the Court must have regard to:

   (a)    the convenience of the parties; and

   (b)    the limiting of expense and the cost of the proceeding; and

   (c)    whether the matter has been listed for final hearing; and

   (d)    any other relevant matter.

3. The relevant law has been set out by this Court in Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd.[7] In that case the Court observed as follows:

   [7] [2008] FMCA 495 (“Sherwood Overseas”).

   “7. The starting point in a discussion of the relevant case law is the judgment in National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor ….

   …

   10. In applying the test that it identified as correct the Full Court of the Federal Court in Sentry Corporation identified a number of factors which might be taken into account, including:

   a) residence of the parties;

   b) residence of the witnesses;

   c) expense to the parties;

   d) the place where the cause of action arose; and

   e) the convenience of the court itself.

   11. The balance of convenience was also identified as a relevant consideration in Sentry Corporation, not necessarily determinative of each case, and as indicated above, a matter of varying weight from case to case.

   12. Sentry Corporation has been applied or followed in a number of cases in the Federal Court and this Court.

   13. The Federal Court has identified other factors which warrant consideration when applying the test identified in Sentry Corporation.  They include:

   a) that the choice of venue should not be capricious;

   b) whether a party might receive a legitimate juridical advantage (such as the ability to claim damages or additional damages, or to be awarded pre-judgment interest, in one venue and not the other);

   c) the governing law of any contract;

   d) the size and nature of any businesses concerned;

   e) the degree of connection with the respective venues, and in particular the subject matter of the litigation (especially where a view or inspection might be required by the court);

   f) the location of Counsel, solicitors and other advisers, particularly those with actual knowledge and relevant experience;

   g) case and docket management considerations, particularly whether a case can or ought to be managed and heard in one Registry, or managed in one Registry and heard in another, which might include consideration of what steps have been taken in the litigation, and if steps have been taken, the nature of those steps and how many steps;

   h) that the Court can sit, take evidence and hear witnesses anywhere in Australia; and

   i) whether witness statements or affidavits have already been taken, and whether a change of venue might render them redundant.

   …

   Consideration of legislation and case law

   20. In determining a change of venue application this Court is constrained by the mandatory requirements of rule 8.01(2) of the FMC Rules.  The Court must have regard to those matters identified in paragraphs (a), (b) and (c) of rule 8.01(2), and must then consider any other relevant matter by reason of paragraph (d) of rule 8.01(2) of the FMC Rules.  In that respect, this Court’s considerations are different to those of the Federal Court, insofar as the Federal Court has unfettered discretion as to which factors it will consider.  That said, the Federal Court authorities on change of venue set out above are relevant insofar as they consider the three mandatory factors in rule 8.01(2)(a)-(c), and other factors considered by the Federal Court in those cases might well be other relevant matters for the purpose of rule 8.01(2)(d) of the FMC Rules.”[8]

   [8] Sherwood Overseas at paras.7, 10-13 and 20 per Lucev FM (with footnotes from the original text omitted), followed in Neil v Reward Property Group Pty Ltd [2008] FMCA 1583 at para.41 per Lucev FM and Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932 at para.69 per Lucev FM (“Broad Spectrum”). See also National Australia Bank Ltd v Neil (2009) 7 ABC(NS) 357 at 360 and 361 per Wilson FM; [2009] FMCA 826 at paras.16 and 19 per Wilson FM.

Convenience of the parties and witnesses

1. There does not appear to be any dispute that:

   a)Ernst & Young are a corporation with offices in both Sydney and Perth;

   b)during the period of the alleged complaints Mr Fontanot was a partner of the Australian partnership of Ernst & Young based in Sydney, and he remains so;

   c)Ms Lee was, during the period of the alleged complaints, an employee of Ernst & Young in Sydney, and resided in Sydney, and remains so;

   d)Ms Blain was, during the period of the alleged complaints, an employee of Ernst & Young in Sydney, and resided in Sydney. Ms Blaine remains an employee of Ernst & Young, but is currently on secondment to Ernst & Young’s Perth office, and therefore, presumably, resides in Perth.

2. There is evidence from Mr Freeman that some 18 people who are potential witnesses are identified in Mr Hoskin’s Australian Human Rights Commission[9] Complaint.[10] Mr Freeman asserts that:

   a)the complaint identifies that 13 of the 18 potential witnesses were based in Sydney, and none were based in Perth or Western Australia (no evidence is provided in relation to the other five potential witnesses);[11]

   b)all potential witnesses that Ernst & Young may call at the hearing of the application, with the exception of Ms Blain, reside in Sydney;[12] and

   c)all documentation relevant to the application that is held by Ernst & Young is retained in Ernst & Young’s Sydney office.[13]

   [9] “AHRC”.

   [10] Mr Freeman’s Affidavit, para.21.

   [11] Mr Freeman’s Affidavit, para.22.

   [12] Mr Freeman’s Affidavit, para.23

   [13] Mr Freeman’s Affidavit, para.24.

3. Mr Hoskin’s Affidavit does not dispute any of the above factual material, but both his Response to the Application in a Case and his Affidavit contain grounds of opposition to the Application in a Case in the following terms:

   1.The Applicant resides and works in Perth. The transfer of proceedings from the Perth District Registry of the Federal [M]agistrates Court to the Sydney District Registry of the Federal Magistrates Court would cause financial hardship to the Applicant. The Applicant would face difficulty obtaining time off from the Applicant’s employer to attend hearings in Sydney.

   2.[Ernst & Young] is a global organization and one of the largest professional services firm in the world and one of the Big Four auditors. The use of some 18 people as potential witnesses is at the discretion of the Respondents rather than evidence to support a transfer to the Sydney District Registry of the Federal Magistrates Court.[14]

   [14] Response, Grounds of opposition or further orders, paras.1-2. Mr Hoskin’s Affidavit, para.15(a) and (b).

4. Mr Hoskin says that Mr Fontanot is a partner of Ernst & Young, and Ms Lee and Ms Blain are employed by Ernst & Young, and that any costs and expenses associated with the hearing being in Perth would be met for them by Ernst & Young and that they would not suffer any financial hardship as a consequence.[15]

   [15] Mr Hoskin’s Affidavit, para.15(c), (d) and (e).

5. The fact that Ernst & Young is a global organisation, one of the largest professional services firms in the world, and one of the “Big Four” auditors is not strictly in evidence before the Court, but Counsel for Ernst & Young, properly, did not take issue with the suggestion made by the Court that Ernst & Young would not find it difficult to fund the litigation (including witness expenses) no matter where further proceedings were held. Those facts must be taken into consideration by the Court, and weighed, against other relevant facts.

6. In relation to the parties other than Ernst & Young, Mr Hoskin and Ms Blain are resident in Perth, and Mr Fontanot and Ms Lee are resident in Sydney. Therefore, in terms of the individuals who are parties to the proceedings the matter is presently finely balanced.

7. None of the other potential witnesses, who are not parties to the proceedings, reside in Perth or Western Australia. Those witnesses would obviously be inconvenienced by having to travel to Perth, away from their place of residence, be accommodated in Perth, wait to be called in the proceedings, and then return to Sydney or elsewhere outside of Western Australia. Whilst not all 18 persons might need to be called as witnesses, it is more than likely that many of them will have to be called as witnesses. In a case based upon alleged discrimination because of age involving issues of performance management, and conduct and comments made within an office environment, much will depend upon precisely what was said by one person to another, its setting, context and tone. Obviously, those are all matters upon which persons who were present might be able to give relevant evidence.

8. At the interlocutory hearing Counsel for the respondents submitted that the nature of the dispute meant that it was more than likely that most of the people referred to in the AHRC Complaint would need to be called as witnesses to give evidence in support of the respondents’ case.

9. The Court accepts the proposition that, given the nature of the allegations, a large number of witnesses may well need to be called to give evidence in this case, with the majority of them being based in Sydney.

10. In relation to the other 18 potential witnesses it cannot therefore be said that the matter is finely balanced. In terms of the final hearing of this matter, the potential number of witnesses resident in Sydney does weigh reasonably significantly in favour of the proceedings being transferred to Sydney.

11. A transfer to Sydney at this stage would have little impact on remaining interlocutory steps and mediation. It is not unusual for this Court to conduct interlocutory hearings by video or telephone between Sydney and Perth. Nor is it uncommon for mediation of matters in this Court to occur by video conference or telephone.[16] Interlocutory proceedings and mediation would be largely unaffected whether the proceedings were conducted in Perth or Sydney, and given the current place of residence of the parties, there would probably be equal inconvenience to the parties whether the proceedings were continued in Perth or Sydney.

    [16] Sherwood Overseas at para.32(b) per Lucev FM; Broad Spectrum at para.32(b) per Lucev FM; Dorrian v Rushlyn Pty Ltd [2010] FMCA 787.

12. Mr Hoskin asserts that transferring the proceedings from Perth to Sydney would cause him financial hardship.[17] Mr Hoskin also asserted, in oral submissions at hearing, that transferring the proceedings from Perth to Sydney would cause him personal hardship because his wife was a nurse who worked shift work and it would be necessary for alternative child care arrangements to be made if he had to travel to Sydney for a hearing. There is, however, no evidence before the Court as to his financial or family position, and it is not possible to conclude on the basis of an unsubstantiated assertion that he would suffer financial or family hardship by reason of a transfer of the proceedings to Sydney. There is simply no adequate evidence to support the submission made.[18]

    [17] Mr Hoskins’s Affidavit, para.15(a).

    [18] Groundwater v Territory Insurance Office (2004) 183 FLR 437 at 447 per Brown FM; [2004] FMCA 381 at para.53 per Brown FM observing that it is “…a nonsense to allow somebody to assert he cannot conduct his case without there being any adequate evidence to support such a submission.” (“Groundwater”). Groundwater has been followed by this Court in Reynolds v The Minister for Health & Anor [2010] FMCA 843 at para.56 per Lucev FM and Broad Spectrum at para.54 per Lucev FM.

13. Whenever it was pointed out to Mr Hoskin in the course of the hearing that there was no evidence in relation to a particular point he indicated to the Court that he could provide evidence if the Court wished him to do so. Such a submission misses the point. The Court’s orders of 11 October 2010 gave Mr Hoskin the opportunity to file and serve affidavits in support of his response to Ernst & Young’s Application in a Case. Mr Hoskin did file an affidavit on 19 November 2010 in accordance with the Court’s directions. Mr Hoskin’s Affidavit did not, however, go into evidence in relation to critical issues. Mr Hoskin’s supporting evidence should have been produced in the affidavit already filed. The Court is supposed to adopt streamlined procedures and not be protracted in its proceedings.[19] And there is no good reason to protract this Application in a Case to allow Mr Hoskin to fix evidentiary gaps in his case. If the points that he now seeks to make were valid ones then evidence in relation to them ought to have been included in his affidavit.

    [19] FM Act, ss.3 and 42.

14. Mr Hoskin also says that he would face difficulty obtaining time off from his employer to attend hearings in Sydney. Again, that assertion is not supported by any further evidence from Mr Hoskin, or from his employer. In any event, it raises a false issue. This hearing is clearly going to be at least a five day hearing, wherever it is held. Even if it is held in Perth, Mr Hoskin will need to attend the hearings, as he is a self-represented litigant, and, even if he obtains the assistance of a lawyer, it will be necessary for him to be present throughout the proceedings in order to give his evidence and to give instructions (for example, in relation to issues that arise in cross-examination of the respondents’ witnesses) to any lawyer. Mr Hoskin will therefore have to have time off to attend any hearing in Perth, and it therefore does not make any difference whether the hearing is in Perth or Sydney, save for any necessary travel time.

1. Mr Fontanot, Ms Lee and Ms Blain do not assert any financial hardship arising from having to attend a hearing, whether in Perth or Sydney. Given that it appears to be common ground that their remuneration would continue throughout any hearing, and their travel and accommodation expenses would be met by Ernst & Young, there is no financial hardship for them, and quite properly, the case is not put on that basis.

Limiting expense and cost of proceedings

1. Whether future proceedings are heard in Perth or Sydney, additional expense and costs will be incurred by either Mr Hoskin or Ernst & Young.[20]

   [20] For reasons set out above Mr Fontanot, Ms Lee and Ms Blaine are unlikely to incur any additional expense whether future proceedings are heard in Perth or Sydney.

2. Because of the significant potential number of witnesses, and the number of respondents who are employees of Ernst & Young, if future proceedings are in Perth then there will be significant expense incurred by Ernst & Young in relation to travel and accommodation expenses for the parties and witnesses. That expense must be balanced against:

   a)Ernst & Young’s capacity to absorb that expense;

   b)Mr Hoskin’s ability to meet the expenses of travel and accommodation in Sydney; and

   c)the capacity of the losing party to meet the costs and expenses of the winning party.

3. There can be little doubt that Ernst & Young would have the capacity to meet the cost of a hearing if it were heard in Perth, including the costs of travel and accommodation of all witnesses called by it, and the capacity to meet the awarded costs of a hearing if it were to lose.

4. It is implicit in Mr Hoskin’s submission concerning financial hardship that there would be difficulty in him meeting the costs of the proceedings, and particularly the travel and accommodation expenses of the parties and the witnesses, if he were to be the losing party in the proceedings.

5. If there are witnesses whose evidence may be short and relatively uncontroversial, it may be appropriate to hear their evidence by video, or possibly even by telephone.[21] However, as indicated above, in a case such as this alleging discrimination on the basis of age arising from performance management assessments, and conduct and comments in an office-based environment, much will depend upon the context, content and tone of relevant conduct and conversations. Those are matters which are likely to be contentious, and the subject of cross-examination. They are matters in respect of which the Court is likely to have to make findings of credit as to each witness. In those circumstances, it is the Court’s view that for any witnesses whose evidence is likely to be contentious and cross-examined upon in the manner described, video evidence is less suitable than evidence given in person.[22]

   [21] Goodall v Nationwide News Pty Ltd [2007] FMCA 218 (“Goodall”) “…provides detailed guidance for any litigant and legal advisors in relation to the matter of video-link evidence in the court”: M Steele, Federal Magistrates Court Guide Book (Sydney: Thomson Legal and Regulatory Limited) para.ADM.1550, page 4013; and see footnote 16 above.

   [22] Goodall at paras.23-38 per Lucev FM and cases there cited.

6. Having a hearing in Perth, conducted with the use of video conferencing technology to hear numerous witnesses in Sydney is unlikely to assist in limiting the expense of this hearing to any significant degree, because it is the Court’s view that those witnesses ought to give evidence in person before the Court. That will result in significant expense being incurred transporting witnesses from Sydney to Perth, and accommodating witnesses from Sydney in Perth.

7. It follows from this conclusion that, so far as witnesses are concerned, the overall expense and cost of the proceedings would be limited by having the final hearing of this matter in Sydney.

8. Ernst & Young asserts that all relevant documents in its possession in relation to these proceedings are held in the Sydney office. Mr Hoskin says nothing about the whereabouts of his documents. It seems likely that most of the relevant documents, and in particular documents to be discovered, if discovery is ordered,[23] will be held by Ernst & Young in Sydney. Further, if there are difficulties during the course of the hearing with respect to the availability or obtaining of documents (if, for example, some issue arises as to an original document or an earlier version of a computer-generated document) there is likely to be less difficulty in obtaining the relevant document speedily and efficiently if the parties are in Sydney.

   [23] See FM Act, s.45(1); Doukidis v Williamson (2008) 6 ABC(NS) 717 at 725-726 per Lucev FM; [2008] FMCA 1352 at paras.36-37 per Lucev FM.

9. The position with respect to lawyers is a little different in these proceedings. The applicant is presently self-represented, and therefore there is no increase in his costs whether the hearing is heard in Perth or Sydney. At hearing, Mr Hoskin evinced an intention to re-engage solicitors in Perth who had previously worked on the matter for him. It was said that they were to be re-engaged to conduct the hearing of the matter. In those circumstances, there would be some disadvantage to Mr Hoskin if the Court were to transfer these proceedings to Sydney as a result of the Application in a Case. However, if the proceedings were to be transferred to Sydney, Mr Hoskin would be able to choose whether to continue with his Perth solicitors, and to brief Counsel in Sydney, if necessary, or to engage solicitors and Counsel in Sydney. A transfer at this stage would be sufficiently early in the course of the proceedings as to not unduly prejudice Mr Hoskin in his choice of lawyers.

10. Presently, the respondents are instructing a national law firm who have provided an address for service at that firm’s Perth offices. If the proceedings remain in Perth no doubt the solicitors will remain unchanged. There may be some additional cost by reason of attendance upon witnesses in Sydney (whether in person or otherwise), and the transfer of documents between Perth and Sydney, but about this there is no evidence. It was asserted that there was inconvenience arising from the difference in time zone between Perth and Sydney, and the fact that Ernst & Young’s Legal Counsel was based in Sydney, and had the conduct of the matter within Ernst & Young. Again, there was no evidence of any particular inconvenience, and whilst the Court accepts that there may be some inconvenience, there was no evidence of any real prejudice arising merely from the fact that the respondents’ current solicitors are in Perth, and Ernst & Young’s Legal Counsel, and most of the witnesses, are in Sydney.

11. In all of the circumstances, and in particular bearing in mind the costs of travel and accommodation for witnesses and the locality of documents, the Court considers that the cost and expenses of these proceedings would be limited overall if the proceedings were held in Sydney. The fact that Ernst & Young can meet the expenses whether the hearing is held in Perth or Sydney does not alter this fact, but Ernst & Young’s capacity to meet these expenses is nevertheless a factor to be weighed when finally determining whether or not the proceedings ought to be transferred from Perth to Sydney or remain in Perth.

Whether listed for final hearing

1. The matter has not been listed for final hearing. Therefore, there is no inconvenience or prejudice to any party by reason of arrangements already made for a final hearing to be conducted having to be undone. Nor has the matter progressed so far in interlocutory proceedings as to warrant case and docket management issues precluding its transfer.[24] Further, the Court observes that, on its enquiries, there is unlikely to be any significant difference in listing dates for a final hearing whether the matter is heard in Perth or Sydney.

   [24] Sherwood Overseas at para.13(g) per Lucev FM, and the Federal Court cases cited thereat in footnote 18.

2. Even if further interlocutory hearings were to be heard in Sydney as a consequence of a transfer, Mr Hoskin would not be prejudiced because he would be able to attend those hearings by video conference in the Perth Registry, and other than in the most exceptional circumstances, there would be no requirement for him to attend a directions hearing, or any other interlocutory hearing, in Sydney.

Other relevant matters

1. A significant factor in these proceedings is that the subject matter of the litigation has no connection whatsoever with Perth. The incidents occurred in Sydney. At the time of the incidents complained of all of the relevant parties and witnesses were in Sydney. The change of residence of Mr Hoskin, and Ms Blain, who is one of the respondents, does not alter the fact that these proceedings are solely connected with conduct which occurred in Sydney. Whilst there is no evidence of caprice in Mr Hoskin’s choice of venue, it being a choice arising from his change of residence, there is no other connection between Perth and the subject matter of the litigation, a fact properly conceded by Mr Hoskin at hearing.

Conclusions and orders

1. Having regard to all of the above factors, the Court is of the view that there is good reason for these proceedings to be transferred from the Perth Registry of this Court to the Sydney Registry of this Court. The:

   a)i)      convenience of the majority of witnesses; and

   ii)the limitation of expense and costs,

   by reason of the majority of potential witnesses being located in Sydney, and

   b)connection between the subject matter of the litigation and Sydney,

   are particular matters which outweigh any considerations which favour the proceedings remaining in the Perth Registry of this Court.

2. The Court has therefore concluded that the Application in a Case for an order that the proceedings be transferred from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry of the Federal Magistrates Court ought to be granted, and there will be an order accordingly.

3. The Court will hear the parties as to costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  6 December 2010