Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) - [2005] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OMIROS PTY LTD v PM DEVELOPMENTS PTY LTD & ORS (No.2)

[2005] FMCA 234

TRADE PRACTICES – PRACTICE AND PROCEDURE – Change of venue.

Federal Magistrates Court Rules 2001, Rule 8.01
Trade Practices Act 1974 (Cth), ss.52, 53(c), 53(d), 53(g)

National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Omiros Pty Ltd v PM Developments Pty Ltd & Ors [2004] FMCA 661
Australian Competition and Consumer Commission v Pauls Ltd (2002) FCA 71

Applicant:

OMIROS PTY LTD (ACN 007 125 466)

Respondent:

PM DEVELOPMENTS PTY LTD
(ACN 099 606 827), MIMI MACPHERSON & ANDREW PAPADOPOULOS

File Number:

MLG1331 of 2003

Judgment of:

McInnis FM

Hearing Date: By written submissions

Date of Last Submission:

11 February 2005

Delivered at:

Melbourne

Delivered on:

7 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr E Vadarlis

Solicitors for the Applicant:

Vadarlis & Associates

Counsel for the Respondents:

Mr R Clark

Solicitors for the Respondents:

Provestlaw

ORDERS

The Respondent’s Application for change of venue be refused.
The Respondent shall pay the Applicant’s costs of and incidental to the application for change of venue fixed in the sum of $1,820.00.
The parties shall file and serve any further affidavits to be relied upon by 5 pm on 18 March 2005.
The parties shall file and serve any affidavits in reply by 5 pm on 30 March 2005.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1331 of 2003

OMIROS PTY LTD (ACN 007 125 466)

Applicant

And

PM DEVELOPMENTS PTY LTD (ACN 099 606 827),
MIMI MACPHERSON & ANDREW PAPADAPOULOS

Respondents

REASONS FOR JUDGMENT

In this matter the Respondents have sought an order pursuant to Rule 8.01 of the Federal Magistrates Court Rules 2001 to change the venue of the hearing from Victoria to the Queensland District Registry.
Rule 8.01 provides as follows:-
“8.01 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.”
In support of the application the Respondents appropriately referred to the decision of National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 where the Court states the following:-
“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 should be noted that the application was commenced in Melbourne by Application filed on 27 November 2003. The matter first came before the Court on 12 December 2003. On that date orders were made by the Court that it be adjourned to 27 January 2004 in order to deal with any application then foreshadowed by the Respondents for summary dismissal and/or strike out of the claim and/or change of venue. Those issues were raised by the Respondents in a Notice of Motion filed 19 January 2004. The matter was further adjourned by consent from 27 January 2004 to 5 March 2004 when it was further adjourned to 9 March 2004 and on that date the parties were permitted to file and serve amended pleadings with the Notice of Motion further adjourned to 29 April 2004. The Applicant filed and served an Amended Statement of Claim on 26 March 2004 which in brief terms relies upon agreements concerning the engagement of the Applicant as an architect for a project involving the construction of an apartment complex known as “Aspect on Burleigh” at Burleigh Heads in the State of Queensland. The agreements which may generally be referred to as client/architect agreements set out in the amended pleadings which also seek to rely upon alleged contraventions of the provisions of ss.52, 53(c), (d) and (g) of the Trade Practices Act 1974 (Cth). Otherwise claims were made in relation to an alleged breach of copyright pursuant to Copyright Act 1968 and/or breach of a guarantee.
When the matter came before the Court on 29 April 2004 the Respondents were permitted to file and serve a request for further and better particulars and consequential orders made including service of any cross-claim by the Respondents and Defence to the Cross-claim by the Applicant. The matter was then at the request of the parties adjourned to 10 September 2004 in order to allow court ordered mediation to occur. The mediation did not resolve the matter. Orders were made on 17 September 2004 in relation to further amendments of pleadings, discovery and the Notice of Motion otherwise adjourned to 17 December 2004. The decision made by the Court on 17 September 2004 was the subject of a judgment which also resulted in an order that the Respondents pay the Applicant’s costs fixed in the sum of $1,500.00 (see Omiros Pty Ltd v PM Developments Pty Ltd & Ors [2004] FMCA 661). It was ordered on 17 December 2004 that the change of venue application be dealt with on written submissions and the Respondent filed in Court submissions on 17 December 2004 with the Applicant’s submissions in response filed on 11 February 2005.
It should be noted that by orders made on 10 September 2004 the application was fixed for a final hearing on 11 April 2005 with a hearing estimate of five days.
It is clear from the chronology which I have recited in some detail that considerable Court time has been devoted to this matter currently docketed before me in Melbourne.
In support of the change of venue application the Respondents claim that in dealing with this matter the Court will need to consider the Architects Act 1985 (Qld) and should take into account that the First Respondent has its registered office in Queensland and the Second and Third Respondents reside and work in Queensland. It is conceded that the Applicant has a registered office in Melbourne and the Cross-Respondent resides and works in Melbourne. The Respondents’ legal representatives are in the Gold Coast though of course the Applicant’s legal representatives reside in Melbourne.
The Respondents claim that there are a number of witnesses located either in the Gold Coast or in Brisbane who will be called for and on behalf of the Respondents including expert witnesses and that the building which is the subject of the agreements is in Queensland and that a view may be necessary.
It is argued that that the matter may be heard earlier in Queensland and claim this is because there is a greater availability of time in that registry.
The Applicant submits that the proceedings should be heard in Melbourne on the basis that having been issued in Melbourne the proceedings have remained in Melbourne since commencement and many interlocutory steps have been taken as recited above. The contract was made in Melbourne and the parties agreed it is claimed that the law of Victoria should apply. The Applicant is based in Melbourne and was sought out by the Respondents from Queensland. The Applicant’s legal team is in Melbourne and Melbourne Counsel has been retained. There would be a significant disadvantage to change the legal representation at this stage of the proceedings according to the Applicant’s submissions. There is no certainty the trial would be listed sooner in Queensland rather than in Melbourne. Issues arising out of the interpretation of the Architects Act 1985 may be dealt with regardless of location as indeed would knowledge of planning requirements of the Gold Coast City Council. Expert evidence is to be called by the Applicant’s solicitors in Melbourne including a Melbourne architect and Melbourne computer expert.
Based on those factors the Applicant submits the matter should remain in Melbourne and the balance of convenience must otherwise be sufficiently pronounced to change the status quo (see Australian Competition and Consumer Commission v Pauls Ltd (2002) FCA 71 at [17] – [19]).

Reasoning

In my view there is considerable force in the arguments advanced for and on behalf of the Applicant. I am not persuaded that the balance of convenience favours a shift of venue at this stage of the proceedings and indeed nor would that be my view had the matter been considered at an earlier stage even prior to the mediation.
Issues concerning the interpretation of legislation including the Architects Act do not provide a significant basis upon which the Application should be transferred to Queensland.
It should be noted the matter now has a hearing dated allocated of five days in the month of April and that orders have been made in relation to the filing and service of affidavits. I am advised by the Registrar of this Court that there is no earlier date for a five day hearing available in Queensland and I am aware that in fact Federal Magistrates sitting in the Brisbane registry currently experience significant difficulties in relation to the delivery of judgments due to the inability to take judgment writing time out of a very busy schedule in that Court. Hence, it is unlikely in my view that the matter would be given an earlier hearing date in Brisbane.
Whether the matter is heard in Melbourne or Brisbane, it is clear that there will be inconvenience to the interstate party. I can see no reason why that inconvenience should necessarily be visited upon the Applicant who has commenced proceedings in Melbourne, who resides in Melbourne, has a legal team in Melbourne and in part seeks to claim against the Respondents in relation to a contract entered into in Melbourne to which it is alleged Victorian law applies. For those reasons and having regard generally to the convenience of the matter, the extent and nature of interlocutory steps already undertaken and the likelihood that the matter will not be heard any earlier in the Brisbane registry, it is my view that it is more suitable bearing in mind the interests of the parties, the ends of justice and the determination of the issues between them together with the most efficient administration of the Court to refuse the application for change of venue.
I shall hear the parties in relation to costs arising from this decision and any further directions which may be given.
I should add that having decided the issue of venue it seems to me appropriate that I should give the parties a further opportunity to participate in mediation prior to incurring the costs and expense of what will clearly be a lengthy hearing currently scheduled in Melbourne to commence on 11 April 2005.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 March 2005