Metro Products Pty Ltd v Trevan, N.C

! .

IN THE FEDERAL COURT OF AUSTRALIA l

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 809 of 1991 . .
GENERAZI DIVISION 1 [
BETWEEN: METRO PRODUCTS PTY LIMITED

Applicant

NICHOLAS CAREW TREVAN

First Respondent

FORTY SEVENTH LEVITATION PTY

Second Respondent

STEVEN CAREW T R E ~

Third Respondent

4TH OCKWOOD PTY LIMITED

Fourth Respondent

PNLELA HELEN TREVAN

Fifth Respondent

1 :

CORAM: Morling J. 11 March 1992

EX TEMPORE REASONS FOR JUDGMENT 1

This is an application by the respondents that the proceedings be transferred to Melbourne and that the venue for further conduct and hearing of these proceedings be in Melbourne. The application is opposed by the applicant.

f

be conducted or continued most suitably, bearing in mind the application by answering the question: where can the case
interest of all the parties and the ends of justice in the
determination of the issues between them and the most
I approach the application in the light of what
was said by the Full Court in National Mutual Holdinas Pty
Limited v Sentry Cor~oration (1988) 83 ALR 434. That is to
say, I think I am required to determine the current

efficient administration of the court?
A central factor in the applicant's case in
support of the orders sought in the notice of motion is that
Mr Nicholas Trevan is very ill and has a short life
expectancy. Unfortunately this appears to be the case. Indeed it must be a serious question whether he will be available to give evidence when the case is heard. He cannot be expected to attend a hearing in Sydney and that is a matter to which I must have regard.
Another matter which I think must be considered is

Mr Trevan's inability to be present in Sydney whilst the
witnesses who will be called by Metro Products are giving their evidence. It might be the case that counsel cross- examining those witnesses will need to refer to Mr Trevan for instructions. That will present a difficulty if he is

in ~Qlbourne and the case is being conducted in Sydney.

Turning to another matter i.e. where the witnesses reside, it is plain that the majority of Metro Products'
witnesses live in Sydney. However, some of them live in places as diverse as South Australia, Queensland and the ACT. Nearly all the applicants' witnesses reside in Melbourne and they appear to number at least four or five.
It is very difficult to tell at this stage of the proceedings where the preponderance of the physical
activities which will be discussed in the evidence took
place, but it does seem that few of them actually took place

in New South Wales.
It seems to be almost certain that at least part of the hearing (i.e. the taking of Mr Trevan's evidence) will have to be conducted in Melbourne. That will of necessity involve travel by Sydney counsel to Melbourne, even though the main hearing is in Sydney.
I have not overlooked Mr Barker's submission that the applicants appear to have been tardy in progressing the application. However, I note that a notice of appearance did not go on until 29 January and that the delay in bringing this application has not been great.
Having regard to all the matters which I am directed to take into account by the National Mutual decision, I think that as the evidence presently stands a case, is made out for the orders sought in paras 1 and 2 of the Notice of Motion. I therefore make orders in terms of paras 1 and 2 of the Notice of Motion. However, in making

Products from making an application of its own to have the those orders I am not to be taken as precluding Metro
proceedings transferred back to Sydney, should circumstances
change.
The costs of this application will be costs in the

principal proceeding.
RECORDED : NOT TRANSCRIBED
I will not make any formal orders. I will make those orders tomorrow after I have given any directions
which you ask me to give.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of His

Honour Mr Justice T.R. Horl~ng. -.

Associate: 0-3 % s * E c ,

Date: 19\-3-'12.

Counsel for the applicant

(respondent to the motion): I. Barker Q.C. with
G. McVay

instructed by D.G. Bowles & Co.

Counsel for the respondents

(applicants to the motion): S.G. Finch
instructed by Gadens Ridgeway

Date of hearing: 11 March 1992
Date Judgment delivered: 11 March 1992

The Federal Court of Australia, in the New South Wales District Registry, was presented with an application by the respondents to transfer the venue of the proceedings from Sydney to Melbourne. The application was opposed by the applicant, Metro Products Pty Limited. The matter, identified as NG 809 of 1991, was heard by Justice Morling. The key legal issue was whether the proceedings should be transferred to Melbourne for the efficient administration of justice, considering the factors relevant to such a transfer. The court needed to determine if the transfer would serve the interests of all parties and the ends of justice, following the principles laid out in National Mutual Holdings Pty Limited v Sentry Corporation.

The court considered several factors in reaching its decision. Firstly, it acknowledged the serious health condition of Nicholas Carew Trevan, a respondent, who was unlikely to be available to give evidence in Sydney. The court also noted the potential difficulties in cross-examining witnesses if Trevan was not present in Sydney. While most of Metro Products' witnesses resided in Sydney, nearly all of the applicants' witnesses were based in Melbourne. The court found that the preponderance of physical activities discussed in the evidence seemed to have occurred outside New South Wales, suggesting that part of the hearing, particularly taking Trevan's evidence, would have to be conducted in Melbourne. The court noted that while the applicants had delayed in bringing the application, the delay was not significant.

Justice Morling concluded that a case was made out for transferring the proceedings to Melbourne, considering the current evidence and the need for efficient administration of justice. The court made orders in line with the respondents' application, allowing for the possibility that Metro Products could later apply to transfer the proceedings back to Sydney if circumstances changed. The costs of the application were to be considered as part of the principal proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 809 of 1991	. .
GENERAZI DIVISION	1	[

be conducted or continued most suitably, bearing in mind the	application by answering the question: where can the case
interest of all the parties and the ends of justice in the
determination of the issues between them and the most

in ~Qlbourne	and the case is being conducted in Sydney.
Turning to another matter i.e. where the witnesses reside, it is plain that the majority of Metro Products'

Products from making an application of its own to have the	those orders I am not to be taken as precluding Metro
proceedings transferred back to Sydney, should circumstances change.

Honour Mr Justice T.R. Horl~ng.	-.
Associate: 0-3	*% s E c ,**
Date:	19\-3-'12.

(respondent to the motion):	I. Barker Q.C. with G. McVay
instructed by	D.G. Bowles & Co.

(applicants to the motion):	S.G. Finch
instructed by	Gadens Ridgeway

Date of hearing:	11 March 1992
Date Judgment delivered:	11 March 1992