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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 234
Decision Date: 7 March 2005

CaseChat Overview and Summary

Omiros Pty Ltd brought an action against PM Developments Pty Ltd and others in the Supreme Court of Victoria. The dispute revolves around issues of contract and alleged breaches, with Omiros claiming damages for the alleged failure of PM Developments to fulfil certain obligations under a contract. The Respondent sought a change of venue for the trial, which Omiros opposed. The primary legal issue the Court had to address was whether the change of venue application should be granted, considering the factors relevant to determining the appropriate forum for the trial. The Court also had to consider the costs associated with the application.

In considering the application, the Court examined the principles governing a change of venue in civil proceedings. The Court noted that while there is a presumption in favour of trials being heard in the location specified by the plaintiff, this presumption could be rebutted if there were compelling reasons to support a change. The Court found that the Respondent had not provided sufficient grounds to justify a change of venue, and that the current venue was appropriate. Furthermore, the Court held that the Respondent should bear the costs of the unsuccessful application.

The Court ultimately refused the Respondent's application for a change of venue. The Court ordered that the Respondent pay the Applicant's costs of the application, set at $1,820.00. The Court also set timelines for the filing and serving of further affidavits by the parties. Additionally, the Court granted liberty to apply to either party in relation to any matters arising out of these orders.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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