Ogawa v Reynolds

[2006] FCA 384

FEDERAL COURT OF AUSTRALIA

Ogawa v Reynolds [2006] FCA 384

PRACTICE AND PROCEDURE – transfer of proceedings – Federal Court Rules, O 10 r 1(2)(f)

Federal Court of Australia Act 1976 (Cth), s 48

Federal Court Rules 1979, O 10 r 1(2)(f)

National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, discussed

MEGUMI OGAWA v CAROLINE REYNOLDS (A REGISTRAR OF THE FEDERAL COURT) AND JEFFREY ERNEST JOHN SPENDER (A JUDGE OF THE FEDERAL COURT)

VID 1592 OF 2005

KENNY J
7 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1592 OF 2005

BETWEEN:

MEGUMI OGAWA
APPLICANT

AND:

CAROLINE REYNOLDS
A REGISTRAR OF THE FEDERAL COURT
FIRST RESPONDENT

JEFFREY ERNEST JOHN SPENDER
A JUDGE OF THE FEDERAL COURT
SECOND RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

7 APRIL 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.This proceeding be transferred to the Queensland District Registry of the Federal Court of Australia.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1592 OF 2005

BETWEEN:

MEGUMI OGAWA
APPLICANT

AND:

CAROLINE REYNOLDS
A REGISTRAR OF THE FEDERAL COURT
FIRST RESPONDENT

JEFFREY ERNEST JOHN SPENDER
A JUDGE OF THE FEDERAL COURT
SECOND RESPONDENT

JUDGE:	KENNY J
DATE:	7 APRIL 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This application was filed in the Victorian District Registry of this Court on 9 December 2005.  The applicant seeks review of a decision of the first respondent to refer to the second respondent a notice of motion seeking a suppression order.  The first respondent is a registrar in the Queensland District Registry of the Court.  The second respondent is a judge of the Court.  The decision that the applicant seeks to review, and all other events allegedly relevant to the application, occurred in Queensland.

2. This matter was listed for a directions hearing at 9:30 am on 28 February 2006.  The applicant contacted the Court seeking that the directions hearing be adjourned.  She claimed that she would be unable to prepare for directions on that day because she had a hearing in another matter before Finkelstein J that afternoon.  She was informed by the Court that, as the matter was listed for first directions only, an adjournment would not be granted.

3. Although the Court organised for video conference facilities to be available for the applicant in Brisbane, the applicant did not appear for the directions hearing of 28 February 2006.  It appeared that the respondents had not been served with any documents in this matter and there was no appearance for them.  The Court adjourned the hearing of further directions in this proceeding.

4. After the directions hearing, the Court contacted the applicant and informed her that, since the application concerned events that occurred in Queensland and persons there, it was proposed by the Court to transfer this (and another) matter to the Queensland District Registry.  The applicant was given an opportunity to file submissions regarding this issue.

5. The applicant filed submissions opposing transfer.  I accept that, as the applicant submitted, the other matter should not be the subject of the transfer order that I propose to make.  In relation to the present proceeding, the applicant also submitted that “since the matter is against the Queensland Registrar and the Queensland judge, it cannot be transferred to the Queensland Registry [because] the respondents will have to act both as the respondents and the judicial officers.”  For the reasons stated below, I reject this submission.

6. The principles that apply to transfer are well settled.  In National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, at 162, a Full Court (Bowen CJ, Woodward and Lockhart JJ) said that:

   “The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case.”

   The Court observed that the power conferred by s 48 of the Federal Court of Australia Act 1976 (Cth) recognises the national character of the Court. The Court added, at 162:

   “The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous.  The Court must weigh those factors in each case.  Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. …

   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.  It cannot and should not, in our opinion, be defined more closely or precisely.”

7. Although this proceeding has been commenced in the Victorian District Registry of the Court, the case has no ties whatsoever to Victoria.  The applicant resides in Queensland.  Both respondents are resident in Queensland.  Similarly, all events underlying the dispute occurred in Queensland.  In any other case, all the relevant factors would support the contemplated transfer.  The applicant submits, however, that the respondents will be subject to a conflict of interest if the matter is transferred to Queensland.  It is true that the respondents are a registrar and judge whose responsibilities in large part concern the work of the Court in Queensland.  It does not follow from this, however, that the applicant’s case cannot properly be dealt with in the Queensland District Registry, which has the benefit of more than one registrar and judge. 

8. For these reasons, I would order, pursuant to O 10 r 1(2)(f) of the Federal Court Rules 1979, that proceeding VID 1592 of 2005 be transferred to the Queensland District Registry of this Court.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:             7 April 2006

Counsel for the Applicant:	The Applicant appears in person
Counsel for the Respondents:	The Respondents did not appear
Date Submissions Received:	8 March 2006
Date of Judgment:	7 April 2006