Queensland Grain Handling Authority v M & M Outdoor Centre Pty Ltd

[1992] FCA 277

C A T C H W O R D S

PRACTICE AND PROCEDURE - Federal Court - cross-vesting

legislation - actions commenced in South Australia and Queensland

- transfer of proceedings to District Court - containment of

costs - balance of convenience favours trial taking place in

Queensland.

'Prade Practices Act 1974 (Cth) S. 86A

QUEENSLAND GRAIN WINDLING AUTHORITY V. M & M OUTDOOR CENTRE PTY	- --
L'L'U
No. QG 171 of 1991
SPENDER J
BRISBANE
19 March 1992
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 171 of 1991
GENERAL DIVISION )

BETWEEN: QUEENSLAND GRAIN HANDLING AUTHORITY

Applicant

AND:  M & M OUTDOOR CENTRE PTY LTD

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	Spender J
DATE OF ORDER:	19 March 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.   Proceedings G171 of 1991 of the Federal Court of Australia at Brisbane be transferred to the District Court of Queensland holden at Brisbane.

2.    The costs of notices of motion heard 19 March 1992 be reserved.

3.    The costs of the proceedings in the Federal Court of Australia, including reserved costs, be reserved to the District Court of Queensland.

THE COURT NOTES: 

The undertaking offered by counsel on behalf of the applicant to pay forthwith to the solicitor for the respondent the sum of $18,546.00 to be held by that solicitor and lodged in an interest-bearing account pending the determination in the District Court of the proceedings transferred there and to abide any order of the District Court as to the disposition of that sum and any accruals.

NOTE :	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	)  No. QG 171 01 1991
GENERAL DIVISION	)

BETWEEN: QUEENSLAND GRAIN HANDLING AUTHORITY

Applicant

AND: M & M OUTDOOR CENTRE PTY LTD

Respondent

CORAM:	Spender J.
PLACE :	Brisbane
DATE :	19 March 1992

EX TEMPORE REASONS FOR JUDGMENT

I have before me an application by the Queensland Grain Handling Authority ('the Authority') againstM & M Outdoor Centre Pty Ltd ('M & M Outdoor Centre'). The litigation is essentially in contract and concerns a claim whlch appears more precisely from the statement of claim filed by the Authority on 6 December 1991.

The complaint by the Authority, in essence, is that the fabrication of covers for storage of grain was negligently performed by the respondent. The agreement was one which appears to have come into existence as the result of correspondence between the Authority and the respondent, which is a smallish company in South Australia. The Authority purchased the fabric for the manufacture of the grain covers and it claims that the costs of the materials were the total of $134,122.84 and $43,070.00.

M & M Outdoor Centre commenced proceedings in the District Court of South Australia, seeking $18,546.00, being the cost, pursuant to the contract, of the fabrication of these covers. The Authority has filed a defence, but that defence is limited so as to amount to a set-off of any claim that M & M Outdoor Centre might have. That matter has gone further this morning, in that it is admitted by Mr. Bell of counsel on behalf of the Authority that the nature and quantum of the claim by M & M Outdoor Centre is not in issue and that the Authority wishes to set off its obligation in the sum of $18,546 -00 against the sums it says are owed to it, by virtue of the defective workmanship, in the fabrication of the grain covers.

Moreover, on behalf of the Authority, Mr Bell undertakes to pay forthwith to the solicitor for M & M Outdoor Centre the amount claimed by it in the District Court proceedings in South Australia to be held by that solicitor, pending the determination of the claim by the Authority against it. I propose to accept that undertaking, and it is an important part

of the conclusion I have reached.

I hereby authorise the solicitors for M & M Outdoor Centre to deposit such moneys in an interest-bearing account, pending the determination of the proceedings brought by the Authority.

The real question in the events that have happened, is whether the trial which, essentially, is now of the claim by the Authority for negligent workmanship, can most efficiently and most fairly be held in Queensland or in South Australia.

Matters involving the transfer of proceedings pursuant to the cross vesting legislation involve real questions of comity and, frequently, the resolution of difficult competing considerations. This case is of that sort. It is claimed by the Authority that it has nine witnesses who are based in Queensland. It is said, on behalf of the respondent in these proceedings, that it has six witnesses in South Australia and, moreover, the nature of the business of M & M Outdoor Centre is such that to have the trial in Queensland would cause the loss of management and would significantly damage productivity and profitability of the company, and the cost of transport and accommodation of the witnesses would be financially prohibitive to them.

The affidavit of Mr. Mark Hamilton filed 12 March 1992
seems to be directed in some respects at the proof of the claim

by M & M Outdoor Centre for the $18,546.00, the claim which is

of witnesses from the respondent to attend the trial in	now admitted. It will be necessary, nonetheless, for a number
Queensland, if that be the place where the trial was to be held. On the other hand, I accept that there would be of the order of nine witnesses, which would have to attend a trial in South Australia, should the trial take place there.
Having regard to the issues raised in the statement of claim, the telling factor to my mind is the fact that each and every one of the 66 grain covers will have to be the subject of inspection and assessment. These are voluminous and are presently located in Queensland, save for two, which have been sent to South Australia. Their value and condition, and the cause of their present condition, are all central matters in the claim by the applicant in these proceedings.
Given the admission of the claim by M & M Outdoor Centre and the nature of the claim which the Authority wishes to make, it seems to me that it is better that the trial take place in Queensland. I acknowledge that this will cause some inconvenience and cost to the respondent but, on balance, I think in the interests of justice generally, and in the efficient discharge of the litigation, it is better that the trial proceed in Queensland.
I am conscious, also, of the need for the containment of costs of the litigation. It seems to me that I ought to direct, pursuant to section 86A of the Trade Practices Act 1974, that these proceedings be tried in the District Court.

The orders that I make are these. Pursuant to S. 86A

of the Trade Practices Act, proceedings G171 of 1991 of the Federal Court of Brisbane be transferred to the District Court of Queensland, holden at Brisbane. The costs of the motions today are reserved. I reserve the costs of the proceedings in this court, including reserved costs, to the District Court.

I note the undertaking offered by Mr Bell of counsel, on behalf of the Queensland Grain Handling Authority, to forthwith pay to the solicitor for M & M Outdoor Centre, the sum of $18,546.00,

to be held by that solicitor and lodged in an interest-bearing account pending the determination in the District Court of the proceedings I have transferred there, and to abide any order of the District Court as to the disposition of that sum and any accruals.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Spender.

ociate

Date: 19 March 1992 V

Counsel for the applicant:	Mr. J. C. Bell
instructed by:	Dowling & Dowling
Counsel for the respondent:	Miss E. Ford
instructed by:	Barker Gosling
Date of Hearing:	19 March 1992