Re Bond, A Ex Parte Ramsay, R.E

[1992] FCA 693

6 Q 3 2 2

JUDGMENT NO. -.- -

THE - T OF AUSTRALIA )

- ) LfMITED DISTRXSUTION

OF ) No. NB1071 of 1991

OF )

A L A L u m

(A Bankrupt)

EX PARTE:

(The Trustee of the property of

Alan Bond, a Bankrupt)

Applicant

-

First Respondent

Second Respondent

AxmJQNQ Third Respondent

! x u L m N R

Fourth Respondent

miMNaQm Fifth Respondent

hlQELwm

Sixth Respondent

-

Seventh Respondent

AuLmNn Eighth Respondent

!x!mH:	HILL J
&ACE:	SYDNEY
Note :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

QATm: 1 SEPTEMBER 1992

1.   The hearing of the application take place in Western Australia.

2.    It shall be sufficient compliance with an order for the filing of a document by any of the respondents if that document is filed at the Western Australian District Registry of this Court.

3.    Costs reserved.

ICT OF	) No. NB1071 of 1991
SOUTH	1

AuLwm

(A Bankrupt)

EX PARTE:

(The Trustee of the property of

Alan Bond, a Bankrupt)

Applicant

First Respondent

-

Second Respondent

AmaiLKm Third Respondent

G w x L x m R

Fourth Respondent

-

Fifth Respondent

tixmBN2	Sixth Respondent
-	Seventh Respondent

AuLwm

Eighth Respondent

cs!Bu:  HILL J

PLACE: SYDNEY

M!lm: 1 SEPTEMBER 1992

FOR J U D W

The third, fourth, fifth and seventh respondents move the court for an order that the proceedings so far as they relate to the superannuation fund initially established for the benefit of Mr Bond, be moved to Perth for hearing. The firet and second respondents although appearing have not

participated in the argument. The application is opposed by the trustee of Mr Bond's estate who submitted that either the proceedings should remain in Sydney or alternatively that the matter should be heard by video link.

The proceedings in this court relating to Mr Bond's bankruptcy initially commenced in the Bankruptcy District of the State of New South Wales, presumably as a result of the creditor's petition initially lodged in this division. Because the bankruptcy proceedings are in New South Wales it follows, under the Bankruptcy Rules, that, in order to be validly filed, as that term is defined in r.4, all applications made in those proceedings would likewise be required to be filed in New South Wales, but subject, of course, to an application, such as the present, that they be heard elsewhere.

The trustee is resident in Melbourne, although his however, I was told from the bar table, employed some	solicitors and counsel are in Sydney. The trustee has,
solicitors in Western Australia. All of the respondents are residents of Western Australia, including Mr Bond, who has not appeared in the proceedings.
Affidavit evidence has been filed by the trustee in bankruptcy of a largely documentary kind. Three of the deponents of these affidavits, Mr Lehrle, Mr Pepper and Mr
Gale, are resident in Western Australia. The remaining deponent, Mr Lord, who is the liquidator of Dallhold
Investments Pty Limited ( "Dallhold"), is a chartered
accountant from Sydney.
The affidavits in the main do little more than annex or exhibit documents upon which the trustee in bankruptcy relies. The applicants to the motion, however, say that they wish to cross-examine these deponents and, in particular, to put them to strict proof of the various matters in issue. These matters include particularly the time in which Mr Bond ceased to be an employee of various companies and indeed whether he was any time the employee of Dallhold.
The applicants to the motion have not filed any affidavit evidence in the proceedings and there is no indication from them that they intend to rely upon any affidavit or oral evidence. They wish to subpoena documents
documents are to be subpoenaed are resident in Western from various sources and say that the companies from which the
Australia. The names of these companies or the classes of documents to be subpoenaed have not been indicated.
It is in these circumstances that the applicants to the motion submit that the proceedings should be heard in Western Australia. In particular, they rely upon the following matters:

(a) The respondents are all in Western Australia and are

entitled to be present and hear the argument.

(b) There are real difficulties for them in the

proceedings being dealt with in New South Wales as all documents have to be filed in the New South Wales registry of the Court.

(c) All the activities with which the litigation is

concerned took place in Western Australia.

(d) Western Australia is the place of residence of the

Bankrupt and also the place where the "cause of

. .

action" arose (cf Crouch v Commlesloner for Railwave

(1989) 85 ALR 347).

(e) The legal advisers of the applicants to the motion

are in Western Australia.

The parties are in agreement that the relevant

principles to be applied are those set out in the judgment of
the Full Court of this Court in

. .

Llmlted v m e S-rv -C(1988) 19 FCR 155. In that

case, the court noted that although there was no onus of proof in a strict sense to be discharged by the parties seeking to conduct or continue the proceedings elsewhere, the court must nevertheless be satisfied, after considering all relevant

matters, that there is sound reason to direct that the
proceedings be conducted or continued elsewhere.

At the end of the day perhaps the most important matter to be considered is the balance of convenience. As their Honours said (at 162):

"Ul t ima te l y the test i s : where can the

case	be	conducted	o r continued	most
s u i t a b l y bearing	i n mind	the	i n t e r e s t s	o f

a l l the p a r t i e s , the ends o f j u s t i c e i n

the determinat ion o f the i s s u e s between

them, and t h e m o s t e f f i c i e n t

adminis t ra t ion o f the Court . I t cannot

and should n o t , i n our opinion, be	de f ined
more	c l o s e l y o r p r e c i s e l y . "

In my opinion, in the present case the balance of convenience is difficult to determine. On the one hand it is hard to see that there is much likelihood of prejudice to the trustee if the matter be heard in Perth, given that in the ordinary course an order of costs would protect the trustee

whether the trustee was or was not successful. On the other

hand, it must also be said that the fact that the matter began

in New South Wales may well be a matter of pure historical

circumstance and certainly has no particular relevance to the present dispute between the trustee in bankruptcy and those who may be interested in the superannuation fund.

The case certainly has more connection with Western
Australia than it does with New South Wales. But for the

historical circumstance which caused the bankruptcy to originate in New South Wales, the only connection with New South Wales is that the legal advisers of the trustees happen to be in this State. I have some doubt as to whether, at the end of the day, there will be, as submitted by counsel for the respondents, much cross-examination of the witnesses for the trustee. That is a matter, however, which cannot be known until the time of the hearing. Certainly if there were to be such cross-examination it is clear that the proceedings should be heard in Perth because that is where most of the witnesses will be.

While I think the is finely balanced, I have concluded that the appropriate order should be that the hearing of the matter take place in Western Australia, but not that the entire bankruptcy be remitted to that state. Any orders hereafter made as to filing of documents should take into account the possibility that the respondents, resident in

Australian Registry from whence they can be remitted to New Perth, could file appropriate documents in the Western

South Wales to maintain the file in this State pending the hearing.

Because of the doubts I have, ultimately, as to the manner in which the proceedings will be conducted in Western Australia, it seems to me that the appropriate order at the moment as to costs is that they be reserved and dealt with at

the hearing. Should it turn out that the present application has been misconceived because there is really no dispute as to the relevant facts, then that is a matter which the judge hearing the case will take into account in determining the costs of the present motion.

I certify that this and the
preceding six (6) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Mr Justice Hill.

Associate: $zdL

Date: 1 September 1992

Counsel and Solicitors	S.M.P. Reeves instructed by
for Applicant:	Malleson Stephen Jaques
Counsel and Solicitors	D. Robinson instructed by
for First and	Lawsons

Second Respondents:

Counsel and Solicitors	D.B. McGovern instructed by
for Third to Seventh	Summers Partners

Respondents: 

Date of Hearing:	1 September 1992
Date Judgment Delivered:	1 September 1992