Pino Fiorentino and Members of the Companies Auditors and Liquidators Disciplinary Board Australian Securities & Investments Commission (ASIC) JOINED PARTY
[2015] AATA 151
•17 March 2015
[2015] AATA 151
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3231
Re
Pino Fiorentino
APPLICANT
And
Members of the Companies Auditors and Liquidators Disciplinary Board
RESPONDENT
And
Australian Securities & Investments Commission (ASIC)
JOINED PARTY
DECISION
Tribunal Prof Robert Deutsch, Deputy President
Date 17 March 2015 Place Sydney The Applicant’s application to have the proceedings transferred from the Sydney to the Brisbane Registry is refused.
............................[sgd]............................................
Prof Robert Deutsch, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for transfer of proceedings – applicable principles – balance of convenience – interests of the parties – interests of justice – efficient administration of justice – application to transfer refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(a), 39
Federal Court of Australia Act 1976 (Cth) s 48
CASES
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd (2014) FCA 1422
Re Horwarth and the Australian Postal Corporation [2008] AATA 655Re Estate of Eduardo Ferro and the Australian Postal Corporation [2009] AATA 174
REASONS FOR DECISION
Prof Robert Deutsch, Deputy President
17 MARCH 2015
INTRODUCTION
The Applicant is seeking review of the Respondent’s decision of 24 June 2014 to cancel the registration of the Applicant as a liquidator. The Applicant filed his application for review of this decision with the Sydney Registry of the Administrative Appeals Tribunal (“the Tribunal”) on 26 June 2014 and teleconferences were held in the Sydney Registry on 2 September 2014, 23 October 2014 and 3 February 2015. As a result of that third teleconference, the Tribunal advised all parties that a directions hearing would be held at the Sydney Registry on 5 March 2015. On the afternoon of 4 March 2015 the Respondent and ASIC were advised that the Applicant was seeking to have the 5 March 2015 hearing date vacated and had requested that the matter be transferred to the Tribunal’s Brisbane Registry.
ASIC opposes the application for transfer of these proceedings from the Sydney Registry to the Brisbane Registry of the Tribunal.
The Tribunal proceeded with the directions hearing on 5 March 2015 and allowed the Applicant to appear by telephone. The Tribunal heard from all parties in relation to the Applicant’s request for the matter to be transferred.
THE RELEVANT LAW
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) does not specifically provide for a change of the Registry of the Tribunal. However, s 33(1)(a) of the AAT Act states that:
“the procedure of the Tribunal is, subject to this act and the regulations and to any other enactment, within the discretion of the Tribunal”.
Of further relevance is s 39 of the AAT Act which relevantly provides that:
“the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case…”
Thus it would seem that provided that both parties are given a reasonable opportunity to present their cases in relation to the matter of transfer of proceedings it is for the Tribunal to decide whether a particular matter should be transferred to another Registry. This of course would be subject to the normal caveat that in exercising any discretion the Tribunal must only take into account relevant considerations and must act reasonably in all the circumstances.
The relevant principles which the Tribunal must take into account are set out in the decision of the Full Court of the Federal Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162. The broad effect of those principles the can be summarised as follows:
(a)The balance of convenience will generally be a relevant consideration but not necessarily a determinative consideration in each case. The balance of convenience is important but it’s weight varies from case to case.
(b)There is no onus of proof in the strict sense to be discharged by the party seeking to conduct the proceedings elsewhere.
(c)The court must, however, be satisfied after consuming all relevant matters, that there is sound reason to direct the proceedings to be conducted or continued elsewhere. It’s starting point will be that proceedings that have been commenced at a particular place should be continued there unless there are sound reasons for changing the location.
Ultimately it would seem that the test is one of deciding where the case can be conducted or continued most suitably bearing in mind the interests of all the parties, the interests of justice in the determination of the issues between the parties and the most efficient administration of justice.
The principles espoused above have recently been affirmed by Besanko J in the Federal Court of Australia specifically in the context of an application for transfer: York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd (2014) FCA 1422.
The principles have also been applied by this Tribunal in cases addressing similar facts: Re Horwarth and the Australian Postal Corporation [2008] AATA 655 and Re Estate of Eduardo Ferro and the Australian Postal Corporation [2009] AATA 174.
Although the principles espoused in the leading Full Federal Court case were in reference to section 48 of the Federal Court of Australia Act 1976 (Cth), which specifically confers jurisdiction on the court as to the choice of the venue of proceedings, the recent Tribunal cases referred to above, have made it clear that the principles are useful and are to be adopted by the Tribunal when requests for a change of venue arise.
THE RELEVANT FACTORS IN THIS DECISION
There are a number of factors that are of relevance in making this decision.
First, it is important to recognise the Applicant commenced these proceedings in Sydney and presumably that was on the basis that he regarded it as the most appropriate location for the determination of the matter. In that regard it is important to note that the Applicant was a long-time resident of Sydney up until fairly recently. The Applicant has since moved regularly in the last eight months, having had four separate places of residence in that period of time. He is currently residing in Toowoomba, Queensland. It is not at all clear that the Applicant will remain in Queensland for the full duration of these proceedings.
Secondly, the application for transfer was made on 4 March 2015 by which time three preliminary conferences and a number of directions hearings had already been held at the Sydney Registry. Further, the various Statements of Facts and Contentions and a statement of the evidence to be given by each of some 19 witnesses have been filed and served through the Sydney Registry.
Thirdly, it appears to be the case that all of the 19 witnesses clearly identified at this stage are based in Sydney. One of these 19 witnesses may well be incarcerated in a New South Wales prison by the time this matter proceeds to a substantive hearing. The witness in question is scheduled to appear before the New South Wales District Court in mid July 2015 for a sentencing hearing. This would give rise to a further layer of complexity if the matter were to be heard in Brisbane.
Fourthly, ASIC and many of its staff and counsel are Sydney-based.
Fifthly there is no aspect of these proceedings that has any connection to Brisbane other than the fact that the Applicant currently resides in Toowoomba, a city located some 125 km west of Brisbane.
All these matters are important in evaluating the Application for transfer of these proceedings and all of them point in the direction of refusing such an application.
In particular, I am concerned that with such a large number of witnesses residing in Sydney, if the matter were to be transferred to Brisbane, the costs of accommodating the needs of the various counsel in examining, cross-examining and re-examining all these witnesses would be significant and would not be required if the matter was to remain at the Sydney Registry.
The Applicant has indicated that the witnesses could be called and cross-examined in Sydney via video link and other methods of modern technology. Whilst I may be swayed to allow such a process in a case where one or two witnesses were involved, with such a large number of witnesses, this procedure would be difficult to accept. Having such a large number of witnesses give evidence by video-link could also add significantly to the duration and the cost of the proceedings. It is also likely that many of the questions to be asked of witnesses will require them to address numerous documents placed in front of them and to compare and explain inconsistencies. From experience this can be a difficult, time consuming and clumsy process especially where video-link it utilised. The ability to test the credibility of witnesses when using technology of this kind, may also be compromised
Set against all this is the one relevant factor connecting the matter with Brisbane and that is current residence of the Applicant in Toowoomba.
In my view the preponderance of the relevant factors favours the conduct of proceedings remaining with the Sydney Registry.
DECISION
The Applicant’s application to transfer the proceedings from the Sydney Registry to the Brisbane Registry is refused.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Prof Robert Deutsch, Deputy President ...............................[sgd].........................................
Associate
Dated 17 March 2015
Date of hearing 5 March 2015 Applicant In person Solicitors for the Respondent Mr M Garey, of Australian Government Solicitor Solicitors for the Joined Party Ms V Plowman, of Australian Securities & Investments Commission
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