Rafferty v Time 2000 West Pty Limited - [2008] FCA 1925

FEDERAL COURT OF AUSTRALIA
Rafferty v Time 2000 West Pty Limited [2008] FCA 1925
PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LIMITED ACN 128 467 550 and KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178 v TIME 2000 WEST PTY LIMITED ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541, EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG) and STEPHEN GERARD DONOVAN
SAD 122 of 2008
BESANKO J
17 DECEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 122 of 2008

BETWEEN:
PATRICK CAMPBELL RAFFERTY
First Applicant

SANTORA HOLDINGS PTY LIMITED ACN 128 467 550
Second Applicant

KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178
Third Applicant

AND:
TIME 2000 WEST PTY LIMITED ACN 127 893 270
First Respondent

TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614
Second Respondent

TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541
Third Respondent

EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Fourth Respondent

STEPHEN GERARD DONOVAN
Fifth Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

17 DECEMBER 2008

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application of the second to fifth respondents for an order transferring this proceeding to the Victoria District Registry be refused.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 122 of 2008

BETWEEN:
PATRICK CAMPBELL RAFFERTY
First Applicant

SANTORA HOLDINGS PTY LIMITED ACN 128 467 550
Second Applicant

KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178
Third Applicant

AND:
TIME 2000 WEST PTY LIMITED ACN 127 893 270
First Respondent

TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614
Second Respondent

TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541
Third Respondent

EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Fourth Respondent

STEPHEN GERARD DONOVAN
Fifth Respondent

JUDGE:

BESANKO J

DATE:

17 DECEMBER 2008

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application by the second to fifth respondents for an order transferring this proceeding from the South Australia District Registry of this Court to the Victoria District Registry. The application is made under s 48 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) which 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.
At the present time, the proper place of the proceeding within the Federal Court Rules is the South Australia District Registry: O 1 r 4. The Court may make an order or a direction that a proceeding be transferred to another place at which there is a Registry: O 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1925
Decision Date: 17 December 2008

CaseChat Overview and Summary

Rafferty v Time 2000 West Pty Limited involved a dispute concerning the appropriate venue for a legal proceeding. The applicants, Rafferty, had initiated proceedings against several respondents, and the respondents sought to transfer the case to the Victoria District Registry. The central issue before the court was whether there was a valid reason to change the venue from the original location.

The legal issues that the court had to address included whether the respondents had demonstrated a compelling reason to warrant a transfer of venue. The court noted that the applicants had chosen a venue that was not arbitrary and that any change would involve inconvenience and cost for either party. The primary consideration was whether the respondents' claim that several witnesses residing in Victoria would need to testify was a sufficient ground for transferring the case. The court recognised that while it could not determine the necessity or importance of the witnesses, it had to assess the respondents' assertions.

The court concluded that the respondents had not provided a compelling reason to justify the transfer. The possibility of taking witness evidence via video link or conducting part of the trial in Victoria seemed to mitigate the necessity for relocating the entire proceeding. Therefore, the respondents had not demonstrated a sufficiently strong reason for the transfer, and their application was denied. The court's decision was based on the balance of convenience and the availability of alternative arrangements for witness testimony.

In summary, the court refused the application of the second to fifth respondents to transfer the proceeding to the Victoria District Registry, thereby upholding the original venue chosen by the applicants. This decision underscores the principle that a change in venue should be justified by significant and compelling reasons.

Orders

Orders of the court

1. The application of the second to fifth respondents for an order transferring this proceeding to the Victoria District Registry be refused.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BESANKO J

In circumstances where an applicant’s choice of venue is not a capricious one, the respondent must show a sound reason for a change of venue. Having regard to the fact that the applicants’ cause of action is based on a law applying throughout Australia and that a degree of inconvenience and cost will be occasioned to one or other of the applicants or respondents whichever venue deals with the proceeding, I think the question of whether the proceeding should be transferred to the Victoria District Registry turns on whether the fifth respondent’s assertion that the respondents wish to call at the trial a number of witnesses who reside in Victoria is a sufficiently sound reason to order the transfer of the proceeding. Of course, I cannot make judgments as to whether witnesses will be necessary or important. However, some assessment of the respondents’ assertion must be made. I am not convinced, having regard to the issues identified in the pleadings and the evidence before me, that the evidence of witnesses who reside in Victoria cannot be accommodated by taking the evidence from those witnesses by video link, or possibly by conducting part of the trial in Victoria. In my opinion, the respondents have not shown a sufficiently sound reason for transfer of the proceeding and their application must be refused.Conclusion The application of the second to fifth respondents for an order transferring this proceeding to the Victoria District Registry is refused.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 122 of 2008

JUDGE:	BESANKO J
DATE OF ORDER:	17 DECEMBER 2008
WHERE MADE:	ADELAIDE

JUDGE:	BESANKO J
DATE:	17 DECEMBER 2008
PLACE:	ADELAIDE