PEP Community Services Inc. trading as PEP Community Services v Job Futures Ltd

[2008] FCA 1264

FEDERAL COURT OF AUSTRALIA

PEP Community Services Inc. trading as PEP Community Services v Job Futures Ltd [2008] FCA 1264

SUPPLEMENTARY REASONS FOR JUDGMENT

PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES v JOB FUTURES LTD

WAD 113 OF 2008

MCKERRACHER J

18 AUGUST 2008 (SUPPLEMENTARY REASONS 9 SEPTEMBER 2008)
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 113 OF 2008

BETWEEN:	PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES Applicant
AND:	JOB FUTURES LTD Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	9 SEPTEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS (IN ADDITION TO ORDERS OF 18 AUGUST 2008) THAT:

1. The costs of the motion and the supplementary submissions in relation to the motion be the applicant’s costs in the cause.

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	WAD 113 OF 2008

BETWEEN:	PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES Applicant
AND:	JOB FUTURES LTD Respondent

JUDGE:	MCKERRACHER J
DATE:	18 AUGUST 2008
PLACE:	PERTH

SUPPLEMENTARY REASONS FOR JUDGMENT

1. On 18 August 2008 I delivered reasons for declining to transfer these proceedings from the Western Australia District Registry to the New South Wales District Registry. 

2. I reserved the question of costs pending receipt of short submissions by the parties.  Those submissions have been received.

3. For the applicant in the transfer application, (the respondent in this proceeding and in proceeding WAD 114 of 2008), it is submitted that in referring the proceedings to the Federal Court, the Supreme Court of Western Australia expressly refrained from nominating to which Registry of the Federal Court the proceedings ought be referred because there were both Western Australian and New South Wales elements in the claims.  Mr LA Tsaknis, counsel for the respondent points out that the determinations as to which Registry the action ought be transferred, was necessary to facilitate the progress of the action and was analogous to a direction made at a directions hearing, the costs of which are usually in the cause.

4. Reliance is also placed on my conclusion that the issues canvassed in the debate were fairly finely balanced.  The respondent submits that it was not unreasonable for the respondent to bring the motion.  In my view that submission is correct. 

5. The applicant, on the other hand, seeks an order that the respondent pay its costs of the motion in any event as costs should follow the event. 

6. By s 43 of the Federal Court of Australia Act 1976 (Cth) it is relevantly provided:

   (1)Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

   …

   (2)Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

7. The applicant has referred to the observation by Toohey J in Hughes v WA Cricket Association (Inc) [1986] ATPR 48,134 at 48,136, where his Honour noted that the unfettered costs discretion must of course be exercised judicially. There are decisions which throw light on the way in which the discretion is to be exercised. Ordinarily, costs will follow the event and a successful litigant receives his or her costs in the absence of special circumstances justifying some other order. However, in Hughes, his Honour was referring to success in the principal proceeding.

8. It is true that the respondent did not have to bring a transfer motion.  However, as I have observed, the merits were finely balanced and it was not at all unreasonable or unarguable that it should do so. 

9. It appears to me that the appropriate disposition which reflects on the one hand the responsible nature of the application brought at an early time in the proceedings (in this Court at least) and on the other, the fact that the application did not succeed, is that the costs of the motion should be the applicant’s costs in the cause.  If the applicant ultimately succeeds it will have the costs of the motion.  If it ultimately fails, it will not.  Put another way, if the applicant eventually succeeds there will be no detriment to the applicant by the order which I propose to make and if the applicant does not succeed, it would be unfair for the applicant nevertheless to be able to recover the costs of this motion which I consider was brought responsibly and was more in the nature of a directions hearing.  

10. Accordingly, I order that the costs of the motion and the supplementary submissions in relation to the motion be the applicant’s costs in the cause.

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

Associate:

Dated:        9 September 2008

Counsel for the Applicant:	P Hannan
Solicitor for the Applicant:	Kott Gunning Lawyers
Counsel for the Respondent:	L A Tsaknis
Solicitor for the Respondent:	Redding & Associates

Date of Hearing:	24 July 2008
Date of Judgment:	18 August 2008

FEDERAL COURT OF AUSTRALIA

PEP Community Services Inc. trading as PEP Community Services v Job Futures Ltd [2008] FCA 1264

PRACTICE AND PROCEDURE – transfer of proceedings from State Supreme Court due to ‘Special Federal Matter’ – Registry deliberately not designated – choice of appropriate Registry

Held:  The respondent’s motion to transfer the proceedings to the New South Wales District Registry is dismissed.

Federal Court of Australia Act 1976 (Cth) s 48
Trade Practices Act 1974 (Cth) s 45

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 3(1)(a), 3(3)(d), 6(3)
New South Wales Restraints of Trade Act 1976 (NSW) s 4

Aquila Resources Limited v Pasminco Limited [2004] FCA 39
Australian Co-operative Foods Ltd & Anor v National Foods Milk Ltd [1998] FCA 376
Jacobs v Claudius Enterprises Pty Ltd [1985] ATPR 40-511
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247
Westpac Banking Corporation v O’Brien [1997] ACTSC 107
Rothwells Ltd (in liq) v Connell [1995] QSC 30

PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES v JOB FUTURES LTD

WAD 113 OF 2008

MCKERRACHER J

18 AUGUST 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 113 OF 2008

BETWEEN:	PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES Applicant
AND:	JOB FUTURES LTD Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	18 AUGUST 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The respondent’s motion to transfer the proceedings to the New South Wales District Registry is dismissed.

2. The parties are to file within 10 days submissions, if any, not exceeding two pages in length in relation to costs. 

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	WAD 113 OF 2008

BETWEEN:	PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES Applicant
AND:	JOB FUTURES LTD Respondent

JUDGE:	MCKERRACHER J
DATE:	18 AUGUST 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These proceedings have been transferred by Templeman J from the Supreme Court of Western Australia to this Court. It is unnecessary to revisit his Honour’s reasons for doing so save to observe that the proceedings include a ‘special federal matter’ as that expression is defined in s 6A of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (the Cross-Vesting Act). The special federal matter (as to which the definition in s 3(1)(a) of the Cross-Vesting Act is a matter arising under Pt IV of the Trade Practices Act 1974 (Cth) (the TPA).

2. Although the matter was transferred to the Western Australian District Registry of the Federal Court, it is common ground that his Honour did not specify to which particular registry the proceedings should be transferred because there were both Western Australian and New South Wales elements in the claim. 

3. The respondent in this matter and in WAD 114 of 2008, Community First Inc v Job Futures Ltd, contends that each matter should be transferred to the New South Wales District Registry. 

4. The applicant opposes any transfer.

LEGAL CONSIDERATIONS

1. Section 48 of the Federal Court of Australia Act 1976 (Cth) (the Act) provides as follows:

   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

2. The Court is required to be satisfied after considering all the relevant matters that there is sound reason to direct that the proceedings be conducted or continued elsewhere.  The test which is to be applied requires consideration of where the case can be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice and the determination of issues between them, and the most efficient administration of the Court:  National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162.

3. In Jacobs v Claudius Enterprises Pty Ltd [1985] ATPR 40-511, Spender J observed that the following were relevant factors for the Court to consider when deciding whether to change venue:

   (a)       the residence of the parties;
   (b)      the residence of the witnesses for the various parties;
   (c)       the expense and prejudice likely to the respective parties;
   (d)      the likelihood of delay being a significant consideration;

   (e)whether there is, in respect of the competing suggestions as to venue, any possibility of an interference with a fair trial of the hearing; and

   (f)       the balance of convenience having regard to all considerations.

4. In addition to the Pt IV TPA question there are issues raised concerning restraint of trade at common law and pursuant to the New South Wales Restraints of Trade Act 1976 (NSW).  Clause 35 of a subcontract agreement between the applicant and respondent provides that the document is governed by the law in force in New South Wales.  Each party submitted to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.  The respondent submits that this clause together with the convenience of witnesses tips the balance in favour of the hearing proceeding in the New South Wales Registry of this Court. 

5. It is to be noted that cl 35 is not an exclusive jurisdiction clause but I accept that it does disclose an intention on the part of the contracting parties to the litigation to prefer any dispute arising under the contract to be conducted in courts within the specified State:  Australian Co-operative Foods Ltd & Anor v National Foods Milk Ltd [1998] FCA 376 and Aquila Resources Limited v Pasminco Limited [2004] FCA 39 at [36]-[41].

6. However, I also accept the applicant’s submission that such a clause in a change of venue application does not carry weight where federal legislation is involved:  Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 at [61] per Siopis J. It is true also that little weight is attached to such a clause where State legislation is involved providing that such legislation is reasonably uniform in nature: Westpac Banking Corporation v O’Brien [1997] ACTSC 107; Rothwells Ltd (in liq) v Connell [1995] QSC 30. In this regard, it may be that the Court is required to construe the New South Wales Restraints of Trade Act 1976 (NSW) but no particular difficulty in doing so was advanced in argument. It is to be noted this is a succinct piece of legislation which by s 3(3)(d) does not affect the operation of any other enactment relating to the validity of restraint of trade. Such other enactment, of course, may include the TPA itself which has been pleaded. The effect of s 4 of the New South Wales Restraints of Trade Act 1976 (NSW) is that (subject to the subsection to which I have referred), a restraint of trade will be valid to the extent to which it is not against public policy, whether it is in severable terms or not.  I have not been addressed on any particular difficulties which may arise by reason of the need to consider the provisions of this legislation. 

PRACTICAL CONSIDERATIONS

1. The respondent rather relies on the fact that three out of four main witnesses reside in New South Wales, that is to say, three out of four of the main witnesses in both of the proceedings which the parties accept are to be heard together.  The applicant contends that this is irrelevant in the context of the present application. 

2. The applicant places particular reliance on the cost of moving the matter to the New South Wales District Registry and the delay and inconvenience in doing so.  The respondent contends that there is no material put forward to justify those assertions.  In relation to that aspect of the matter, in my view, it seems likely there would be some, but not necessarily great additional cost if the matter were moved. 

3. Most of the other factors, according to the respondent are neutral or of such insignificance that they do not require consideration in terms of the respondent’s motion. 

4. The applicants have issued proceedings in Western Australia, they reside in Western Australia and they allege that the relevant damage is in Western Australia.  They also contend:

(a)       all the applicant’s offices and staff are resident in Western Australia;

(b)the applicant provides all services the subject of the subcontract directly to the public of Western Australia;

(c)the respondent, although based in Sydney, is a national company with offices and business interests around Australia including a Western Australian head office;

(d)the applicant intends that Ms Allen will give evidence at trial and she resides in Western Australia;

(e)the applicant’s solicitors who have had the conduct of the matter since the commencement of the proceedings are based in Perth;

(f)each of the parties have retained experienced counsel in Western Australia who have had the carriage of the matter to date.  That is not to say that those or other counsel could not appear in the New South Wales District Registry but there would appear to be some additional expenditure involved if there were a change in counsel, were a Western Australian counsel travelling to Sydney;

(g)the respondent has been able to conduct the proceedings successfully so far with the use of solicitors both in Perth and in Sydney;

(h)The applicant’s choice of venue initially which is reflected in the commencement of the proceedings in the Supreme Court of Western Australia is that the proceedings be heard in Western Australia; and

1. Active pursuit of a transfer to the Federal Court was not initiated by the respondent until quite recently.

1. In the end, the issues are fairly finely balanced but for these reasons, I am satisfied that the factors relied upon by the applicant in opposing the change of venue should prevail: 

(a)The proceedings were reasonably advanced at the time of transfer to this Court.  Each was listed for trial in the Supreme Court of Western Australia for hearing on 23, 26, 27 and 28 May 2008 prior to the transfer of the matter.  (There is some debate about the state of readiness for trial at that stage). 

(b)To instruct solicitors and perhaps counsel in Sydney on the matters in dispute and the history of the matters would clearly involve at least, some cost, inconvenience and delay. 

(c)Should some witnesses prefer to give their evidence from a location other than that in which the proceedings are conducted, there is ample modern technology to facilitate that preference. 

CONCLUSION

1. In my view, the more appropriate Registry to deal with the application is the Western Australian District Registry or at the least, the reasons to transfer the matter are not compelling.  Accordingly, I will decline the respondent’s motion for transfer of the proceedings to the New South Wales District Registry.  I make the following orders:

2. The respondent’s motion to transfer the proceedings to the New South Wales District Registry is dismissed.

3. The parties are to file within 10 days submissions, if any, not exceeding two pages in length in relation to costs. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        18 August 2008

Counsel for the Applicant:	P Hannan
Solicitor for the Applicant:	Kott Gunning Lawyers
Counsel for the Respondent:	L A Tsaknis
Solicitor for the Respondent:	Redding & Associates

Date of Hearing:	24 July 2008
Date of Judgment:	18 August 2008