Lisa Joy Pty Ltd ACN 063 934 289 v Brothers Neilsen International Pty Ltd ACN 063 545 200

[2003] FCA 1634

FEDERAL COURT OF AUSTRALIA

Lisa Joy Pty Ltd ACN 063 934 289 v Brothers Neilsen International Pty Ltd ACN 063 545 200 [2003] FCA 1634

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

Trade Practices Act 1974 (Cth) ss 51AA, 51AC, 52.
Federal Court of Australia Act 1976 (Cth) s 48
Federal Court Rules O 10 r 1(2)(f)

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

LISA JOY PTY LTD ACN 063 934 289 v BROTHERS NEILSEN INTERNATIONAL PTY LTD ACN 063 545 200
W133 OF 2003

LEE J
15 AUGUST 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W133 OF 2003

BETWEEN:

LISA JOY PTY LTD ACN 063 934 289
APPLICANT

AND:

BROTHERS NEILSEN INTERNATIONAL PTY LTD ACN 063 545 200
FIRST RESPONDENT

PAUL GREGORY NEILSEN
SECOND RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

15 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 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	W133 OF 2003

BETWEEN:

LISA JOY PTY LTD ACN 063 934 289
APPLICANT

AND:

BROTHERS NEILSEN INTERNATIONAL PTY LTD ACN 063 545 200
FIRST RESPONDENT

PAUL GREGORY NEILSEN
SECOND RESPONDENT

JUDGE:	LEE J
DATE:	15 AUGUST 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1. The applicant commenced proceedings against the respondents in the Western Australia District Registry of the Court on 6 June 2003 seeking compensation for loss suffered by reason of alleged breaches of ss 52, 51AA and 51AC of the Trade Practices Act 1974 (Cth) and damages for negligence. The first respondent has cross-claimed against the applicant in contract. Both the claim and cross-claim arise out of a franchise agreement made between the applicant and the first respondent. The franchise the subject of the agreement involved the conduct of a retail business situated in Perth.

2. By a notice of motion filed 22 July 2003 the respondents seek an order pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and O 10 r 1 of the Rules of the Federal Court (“the Rules”) that the proceeding be transferred to the Queensland Registry. That is to say that the Queensland Registry become the “proper place” under the Rules.

3. On its face the matter has a connection with this State and, therefore, the Registry has been duly selected as the “proper place”.  However, on closer analysis that connection is shown to be peripheral.  The pleadings indicate that the issues to be determined concern the construction of documents and the inferences to be drawn from the conduct of the parties.  There is likely to be expert evidence relating to a relevant market in this State and on the quantification of loss.  No doubt much of that evidence will be contained in written reports. 

4. I am not informed of the place of incorporation of the applicant company.  It does not appear that the company is presently a trading company.  The controller, or the person described as the controller, of the applicant resides in Queensland.  It is said that she intends to return to Western Australia to help her father expand his business in this State.  As far as the respondents are concerned, the first respondent has its registered office in Queensland and the second respondent resides in Queensland. 

5. At the time these proceedings were commenced, both parties had instructed solicitors in Queensland.  It is significant that the applicant’s address for service is the address of the applicant’s solicitors in Queensland. 

6. It was a term of the franchise agreement that any dispute arising out of that contract be litigated in Queensland. 

7. The parties have attempted to resolve the matter through mediation which was conducted in Queensland.  It would seem to follow that if mediation were to be revived, the logical place for it to be conducted would be Queensland. 

8. The appropriate test to be applied on this application was set out by a Full Court of this Court as follows in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162:

   ‘…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’

9. In summary the relevant considerations are case management, convenience of the parties and what will best serve the administration of justice.  Under the docket system implemented in this Court, a large part of case management requires the chambers staff of a judge to be involved directly in contact with solicitors for the parties and in supervising compliance with directions that have been made.  In this matter, where both parties have instructed solicitors in Brisbane, it would be unrealistic to suggest that efficient management of the case will be served by case management out of chambers in this Registry.  The two-hour gap between Eastern and Western Standard Time would be a significant problem. The logical course would be for a judge in the Queensland Registry to control the matter and oversee the future management thereof. 

10. Having regard to the foregoing matters I am satisfied that overwhelmingly the balance falls on the side of making an order for transfer.  It is not common for such an order to be made, but this is a case where it is clear that the Queensland Registry should be the “proper place” and I will so order. 

I certify that the preceding ten  (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             7 September 2004

Counsel for the Applicant:	N.D.C. Dillon
Solicitor for the Applicant:	Dibbs Barker Gosling
Counsel for the Respondent:	P.A. Hastie
Solicitor for the Respondent:	Gadens Lawyers
Date of Hearing:	15 August 2003
Date of Judgment:	15 August 2003