R v Whitnall

[1993] FCA 271

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NG 3010 of 1993

1

GENERAL DIVISION )

BETWEEN:  MICHELLE LOUISE WISE

First Applicant

BARRY DOUGLAS WISE

Second Applicant

AND : COORPAROO CONSTRUCTIONS PTY

LTD (A.C.N. 009 924 999)

First Respondent

ELINA MACKEY

Second Respondent

MERVYN GEORGE REID

Third Respondent

IAN EDWIN YE0

Fourth Respondent

PADRAIC ALEXANDER MACKEY

Fifth Respondent

TALL TIMBERS WOODWARE PTY LTD

(A.C.N. 000 613 829)

Second Applicant

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:  MICHELLE LOUISE WISE

First Applicant

BARRY DOUGLAS WISE

AND :	TA.LL TIMBERS WOODWARE PTY LTD
(A.c.N.  000 613 8 2 9 )

First Respondent

ELINA MACKEY

Second Respondent

MERVYN GEORGE REID

Third Respondent

COORPAROO CONSTRUCTIONS PTY

LTD (A.C.N. 009 924 999 )

Fourth Respondent

PADRAIC ALEXANDER MACKEY

Fifth Respondent

CORM:	FOSTER J
DATE :	26 FEBRUARY, 1993
PLACE :	SYDNEY

THE COURT ORDERS THAT:

1.   The application for the transfer of the proceedings be dismissed;

2 .    The second, third and fifth respondents pay the applicants' costs of this application;

3.    Orders in accordance with the Short Minute of Orders be made;

4.   Both proceedings be stood over for further direction on 7 May 1993.

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

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 3010 of 1993

)

GENERAL DIVISION 1

BETWEEN:  MICHELLE LOUISE WISE

First Applicant

BARRY DOUGLAS WISE

Second Applicant

AND:	COORPAROO CONSTRUCTIONS PTY
LTD  (A.C.N. 009 924 999)

First Respondent

ELINA MACKEY

Second Respondent

MERWN GEORGE REID

Third Respondent

IAN EDWIN YE0

Fourth Respondent

PADRAIC ALEXANDER MACKEY

Fifth Respondent

TALL TIMBERS WOODWARE PTY LTD

(A.C.N. 000 613 829)

Sixth Respondent

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 3012 of 1993

1

GENERAt DIVISION 1

BETWEEN :  MICHELLE LOUISE WISE

First Applicant

BARRY DOUGLAS WISE

Second Applicant

AND :  TALL TIMBERS WOODWARE PTY LTD
(A.C.N. 000 613 829)

First Respondent

ELINA MACKEY

Second Respondent

MERVYN GEORGE REID

Third Respondent

COORPAROO CONSTRUCTIONS PTY

LTD (A.C.N. 009 924 999)

Fourth Respondent

PADRAIC ALEXANDER MACKEY

Fifth Respondent

CORAM:	FOSTER J
DATE :	26 FEBRUARY, 1993
PLACE :	SYDNEY

REASONS FOR J U m N T
(Extempore)

HIS HONOUR: This is an application pursuant to s 44 of the Cor~orations (New South Wales) Act 1990 for an order for the transfer of two proceedings from this Court to the Queensland Supreme Court.

The proceedings in question relate, first, to the company Coorparoo Constructions Pty Limited. Those are proceedings G3010 of 1993. The other proceedings relate to the company Tall Timbers Woodware Pty Limited, proceedings G3012 of 1993.

The proceedings in relation to Coorparoo
Constructions Pty Limited appear to have been commenced in the

New South Wales District Registry of this Court by application filed on 19 January of this year. The other proceedings were commenced by application filed on 20 January 1993.

Each application seeks wide ranging declaratory and other relief in relation to the appointment of directors and officers of the companies and as to the validity of various significant resolutions. It appears sufficiently from what has been placed before me that the two companies involve family considerations, the families involved being described in argument before me as the Wise family and the Mackey family. It seems quite clear that there are significant and wide ranging disputes between the persons who are applicants in these proceedings and the respondents, and that those disputes involve the operations of these two companies over a significant period of time.

The applications are, indeed, supported by

voluminous affidavits which have been filed in this Registry.

the application before me, but it has been sufficiently	I have not been taken to those affidavits for the purpose of
indicated that the material contained in those affidavits covers a large number of transactions over a considerable period of time.
The applicants in these proceedings resist the application to have them transferred from this Court to the Queensland Supreme Court. They have, of course, chosen this Court as the jurisdiction in which they seek that the various issues that they raise be determined. It is their prerogative, of course, to choose the national court for the purpose of determination of matters under the Corporations Law and also the particular registry of that Court in which to commence the proceedings.
The section under which the application is made by the present applicants who are, for the most part, the respondents to these applications, for the transfer of the proceedings to the Queensland Supreme Court reads, so far as is relevant, as follows:

"Where it appears to the court that, having regard to the interests of justice, it is more appropriate for the proceeding, or an application in the proceeding, to be determined by another court having jurisdiction in the matters for determination in the proceeding or application the first-mentioned court may transfer the proceeding or application to that other court."

The respondents to the proceedings, the applicants justice require that the subject matter of these applications in this application, therefore assert that the interests of

be heard in the Queensland Supreme Court.

Various matters have been agitated before me in support of that contention. Affidavits have been placed before me by both sides in which considerations of the convenience of the matters being disposed of in one court or the other are raised. It must be realised that this is not an application, of course, for the transfer of a matter from the Supreme Court of one state to the Supreme Court of another.

An application of that kind, of course, can raise quite

special considerations of convenience based upon the
geographical location of parties, witnesses, and evidence.

This is an application to transfer from a national Court to a state Court. This Court has jurisdiction to hear this matter in whole or in part, in Sydney or in Brisbane, or partly in each area. In those circumstances one is necessarily less impressed by considerations which relate simply to geographical convenience. Geographical convenience has been agitated by both sides.

The present applicants, the respondents in proceedings, have brought to my attention their own places of residence and of business as being located in Queensland. They point to the fact that the applicants, the respondents to this application, are resident not far from the boundary of

area.	New South Wales and Queensland, living in the Tweed Heads
The applicants, on the other hand, point out that it is more convenient for them to travel to Sydney from their place of residence using an airline than it is to drive from Tweed Heads to Brisbane. As I have said I am not particularly impressed by the assertions one way or the other in this regard when I consider the fact that this Court is able to accommodate to a large extent matters of inconvenience by its ability to sit in more than one state.
The other major consideration urged in favour of a transfer to the state Court is that proceedings were brought in the Supreme Court of Queensland relating to some extent to the subject matter of dispute between the parties. Those proceedings, apparently, were initiated in that Court in circumstances where it was known that these proceedings were to be brought in this Court.
Indeed, the proceedings were brought on with considerable speed in the Queensland Supreme Court. They were heard, I understand, on 21 January whilst these proceedings were, as I have indicated, commenced on 19th and 20 January in this Court. I have had regard to the nature of the proceedings brought in the Supreme Court of Queensland so far as they appear from material that has been placed before me. They are proceedings brought under s 260 of the Corporations
Law for fairly specific relief. They sought the production of a large number of documents. More particularly they sought the execution of a
contract of sale of certain property at Tweed Heads. They were successful in achieving that result. I am told that the contract for sale has been executed and that the proceeds of sale are in effect to be held in trust pending the outcome of litigation between the parties.
What is put to me in relation to the Queensland proceedings is that they were limited in scope and that for practical purposes they have been completed. It has been submitted that they can be revived and what is sought is that these proceedings be transferred to the Supreme Court of Queensland so that they may be joined up with those proceedings that were disposed of to a large extent in January although they remain on foot and can be revived.
There may be some convenience in that course but having regard to the claims made and the proceedings brought in this Court and the claims made and largely disposed of in the Queensland Supreme Court, it does rather seem to me that it would be like joining the dog to the tail. I am not satisfied, on what has been placed before me, that the interests of justice require that the proceedings properly commenced in this Court now be removed to a state Court to be disposed of with proceedings which have been commenced in that Court.
I am satisfied that in view of the applicants' opposition to that course that it should not be taken. Accordingly, I dismiss the application for the transfer of the proceedings and I order the applicants in that application to pay the respondents' costs.
In matter G 3010 of 1993 I make orders in accordance with the short minutes of order. The matter will be stood over for further directions on 7 May 1993. In relation to G
3012 of 1993 I make the same orders.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date	:	26 FEBRUARY 1993
A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR C.J. BEVAN
INSTRUCTED BY:	HALLIDAY & STAINLAY

COUNSEL FOR THE SECOND, THIRD AND FIFTH RESPONDENTS:	MR D.G. CHARLES
INSTRUCTED BY:	FEE2 RUTHNING

DATE OF HEARING:	26 FEBRUARY 1993
DATE OF JUDGMENT:	26 FEBRUARY 1993