Leung P. v Bank of Melbourne Ltd

[1995] FCA 653

CATCHWORDS

PRACTICE - application for transfer of proceedings - proper principles to be applied in exercising  discretion - application dismissed.

National Mutual Holdings Pty Ltd & Ors v Sentry Corporation

(1988) 19 FCR 155

PETER LEUNG and VOTRAINT 181 PTY LTD v BANK OF MELBOURNE LIMITED

No.  NG 485 of 1995

FOSTER J

27 JULY 1995

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY)    No.  NG 485 of 1995

)

GENERAL DIVISION                  )

BETWEEN:      PETER LEUNG

First Applicant

VOTRAINT 181 PTY LTD

(ACN 003 042 888)

Second Applicant

AND:      BANK OF MELBOURNE LIMITED

(ACN 007 270 448)

 Respondent

JUDGE MAKING ORDERS:    FOSTER J

DATE:     27 JULY 1995

PLACE:    SYDNEY

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.   The respondent's application for transfer of these proceedings to the Victoria District Registry be dismissed.

2.   The respondent pay the applicants' cost of this motion.

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

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY)    No.  NG 485 of 1995

)

GENERAL DIVISION                  )

BETWEEN:      PETER LEUNG

First Applicant

VOTRAINT 181 PTY LTD

(ACN 003 042 888)

Second Applicant

AND:      BANK OF MELBOURNE LIMITED

(ACN 007 270 448)

 Respondent

CORAM:    FOSTER J

DATE:     27 JULY 1995

PLACE:    SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR:   This is an application by the respondent, the Bank of Melbourne Limited, seeking an order that these proceedings be transferred from this Registry to this Court's Victoria District Registry.  All evidence relevant to the application has been placed before me and the significance of that evidence has been fully canvassed.  Indeed, counsel for the respondent has said everything that could possibly be said in favour of a change of venue in this matter.

Whether a transfer should be ordered is very much a matter for the discretion of the Judge hearing the application.  Proper principle to be applied in exercising this discretion were discussed in National Mutual Holdings Pty Ltd & Ors v Sentry Corporation (1988) 19 FCR 155 at 162. The Court indicated that the starting point of the exercise of discretion is that the proceedings have been commenced at a particular place. The Court must then ask the rhetorical question, "why should it be changed?". The weight to be given to the choice of place will, of course, vary and the Court will be justified in giving it no weight at all where the choice has been a capricious one. Nevertheless, although there is, of course, no formal question of onus involved, the Court must, before ordering a transfer, be satisfied that there is sound reason to direct that the proceeding be continued or conducted elsewhere.

On the facts of this case it is conceded that the commencement of these proceedings in Sydney was not a merely capricious choice on the part of the applicant.  In fact, very sound reasons have been given for that choice.  The applicant now resides in Sydney and the firm of solicitors to whom he has entrusted the conduct of these proceedings has its offices in Sydney.  It has no offices in Melbourne.

Furthermore, it is clear that a rapport has been built at a professional level between the applicant and his solicitors.  The applicant is also disadvantaged to an extent in relation to language, his primary language being Cantonese, although he does have a fair grasp of English.  In my view, it is clear that the applicant would be disadvantaged if he were now required to conduct these proceedings through Melbourne solicitors even if they were acting as agents for his present solicitors in Sydney.

I have also considered the fact that a number of witnesses in this case will come from Victoria and that the respondent bank has its main presence in that state.  On the other hand, however, the solicitors for the respondent have offices in both Sydney and Melbourne.  Furthermore, in my view, there will be none of the disadvantage suffered by the respondent that would be suffered by the applicant if these proceedings were now removed to the Victoria Registry.

These matters are largely matters of impressed and discretion, but I am not persuaded on what has been put to me, despite the cogent way in which it has been put, that it is appropriate to make any order for a change of venue to the Victoria District Registry.  I therefore dismiss this application.  I order the respondent to pay the applicant's costs of this motion.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date:         27 JULY 1995

A P P E A R A N C E S

COUNSEL FOR THE APPLICANTS:       P.P. O'LOUGHLIN

INSTRUCTED BY:                    GORDON & JOHNSTONE

COUNSEL FOR THE RESPONDENT:       M.R. SPEAKMAN

INSTRUCTED BY:                    MINTER ELLISON

DATE OF HEARING:        27 JULY 1995

DATE OF JUDGMENT:       27 JULY 1995