Plimsoll Shipping Pty Ltd v Transfield Defence Systems Pty Ltd

[1997] FCA 418

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 50 of 1997

GENERAL DIVISION )

IN ADMIRALTY )

BETWEEN: PLIMSOLL SHIPPING PTY

LIMITED

(ACN 071 576 068)

Plaintiff

AND: TRANSFIELD DEFENCE SYSTEMS

PTY LIMITED

(ACN 006 870 846)

Defendant

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 6 MAY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The proceedings be transferred to the Western Australian Registry.

1. The plaintiff pay the costs of the defendant on the application.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 50 of 1997 GENERAL DIVISION )

IN ADMIRALTY )

BETWEEN: PLIMSOLL SHIPPING PTY

LIMITED

(ACN 071 576 068)

Plaintiff

AND: TRANSFIELD DEFENCE SYSTEMS

PTY LIMITED

(ACN 006 870 846)

Defendant

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 6 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

This is an application by the defendant to transfer these proceedings, which were instituted in the Sydney Registry, to the Perth Registry. The application is made on the basis that the defendant is a company which conducts the business of ship building in Western Australia. The business is located in Henderson which is near Perth.

The proceedings arise from the manufacture in West Australia in 1996 of two landing craft which were to be delivered to Brunei in January 1997. There was a dispute between the plaintiff and defendant as to the carriage of the craft from Perth to Brunei. The contract for carriage was negotiated by a Mr Gallon on behalf of the defendant and Mr Stephens on behalf of the plaintiff.

Mr Gallon resides permanently in Western Australia and was located in Western Australia at all relevant times during the negotiations. Mr Stephens at material times appears to have been located in Queensland. In addition, it appears from the affidavits filed by the applicant that the claim also includes a question as to the equipment purchased by Global Hire Pty Limited ("Global") for use in the loading of the craft onto the vessel for shipment. This question may make it necessary to call evidence in respect of the equipment. Global also carries on business in Western Australia.

The evidence, at the present early stage of the proceedings, is that it may be necessary at the hearing for Mr Gallon to be called to give evidence on behalf of the defendant and for Mr Stephens to be called on behalf of the plaintiff. It may also be necessary to call a representative of Global.

There appears to be little connection with Sydney in this case. The defendant corporation resides in Sydney but the relevant physical activities appear to have taken place in Western Australia. The two competing forums, which to my mind are appropriate, are Queensland or Western Australia. On the affidavit material before me, having regard to the above matters, I think that Western Australia has the greater connection. However, the test is not simply one of the balance of convenience. The weight of this consideration must vary from case to case as the Full Court pointed out in its decision in National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155 at 162. The test was there cast in these terms:

"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."

It is true that in that case the Court took, as its starting point, the fact that the proceedings had been commenced at a particular place. One must ask the question: why should it be changed? It has not been suggested in this case that Sydney has been chosen capriciously, although it has been submitted that there is very little nexus and that appears to be correct. The Court, of course, should give some weight in this case to the fact that Sydney was chosen as the venue, that pleadings have been closed in Sydney and that some work has been done in relation to compiling a list of documents in order to provide discovery. But, in my view, in this case, that is not conclusive or determinative. The principal feature is that most aspects of this dispute appear to relate to Western Australia. Reference has been made to the costs of air fares, accommodation and the like in travelling from Western Australia to Brisbane or to Sydney. These are not insubstantial.

Accordingly, it becomes appropriate to give considerable weight to the likely number of witnesses and their locations. It seems to me at present that the balance weighs strongly in favour of Western Australia in the interests of the efficient administration of the matter. It is convenient to have the matter case-managed from an early stage by a judge, who will ultimately hear the matter, in Western Australia. Therefore, I grant the application to remove the proceedings to the Western Australian Registry.

I think in the circumstances it is appropriate to award costs on this application to the defendant because it has been contested and the defendant has been successful.

I certify that this and

the preceding three (3)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 6 May 1997

Counsel for Plaintiff: Ms L Muston

Solicitor for Plaintiff: Conway O'Reill

Solicitor for Respondent: Hunt & Hunt

Date of Hearing: 6 May 1997

Date Judgment Delivered: 6 May 1997