Ross, in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias

[2019] FCA 1029

FEDERAL COURT OF AUSTRALIA

Ross, in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias [2019] FCA 1029

File number:	QUD 240 of 2019
Judge:	REEVES J
Date of judgment:	27 June 2019
Catchwords:	PRACTICE AND PROCEDURE – application for transfer to the Hobart Registry – where the parties are located in Hobart – where the books and records of the company are located in Hobart – where likely witnesses are located in Hobart – where the majority in value of creditors are located in Brisbane – application adjourned
Legislation:	Federal Court of Australia Act 1976 (Cth)
Cases cited:	Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227
Date of hearing:	27 June 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Plaintiffs:	Mr BA Hall
Solicitor for the Plaintiffs:	AJ & Co Lawyers
Counsel for the Defendants:	Ms AG Rae
Solicitor for the Defendants:	Tierney Law

ORDERS

QUD 240 of 2019

IN THE MATTER OF PRINT MAIL LOGISTICS (INTERNATIONAL) PTY LTD (IN LIQUIDATION) 

ACN: 142 144 830

BETWEEN:

DAVID ROSS & BLAIR PLEASH AS LIQUIDATORS OF PRINT MAIL LOGISTICS (INTERNATIONAL) PTY LTD (IN LIQUIDATION) ACN 142 144 830

First Plaintiff

PRINT MAIL LOGISTICS (INTERNATIONAL) PTY LTD (IN LIQUIDATION) ACN 142 144 830

Second Plaintiff

AND:

NIGEL BENJAMIN ELIAS

First Defendant

LUIS GARCIA

Second Defendant

JOHN WILLIAM WOODS (and another named in the Schedule)

Third Defendant

JUDGE:	REEVES J
DATE OF ORDER:	27 JUNE 2019

THE COURT ORDERS THAT:

1.The application filed 13 June 2019 is adjourned to 9.30 am on 12 September 2019.

2.The case management hearing is adjourned to 9.30 am on 12 September 2019.

3.Costs on the application are reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1. This is an application to transfer this proceeding to the Hobart registry of this Court.  The principles applicable to such an application were set out by McKerracher J in Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227 at [15]. Understandably, that decision did not take account of the provisions of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (the Act), which came into effect on 1 January 2010. Those sections of the Act require the Court and the parties before it to conduct proceedings justly, quickly, inexpensively and efficiently. In my view, these factors should also affect an application of the present kind.

2. Having regard to those principles and factors, Ms Rae, counsel for the defendants, has pointed to a number of matters which she submits support the proposed transfer of this proceeding.  They include the location of the parties; the location of the books and records of the company in liquidation and a related company; and the location of the witnesses likely to give evidence at trial, although she acknowledges that it is too early in the proceeding to be confident about the latter.

3. Against these, the liquidators have pointed out that they chose to bring this proceeding in this registry.  The main consideration affecting that decision was that the majority by value of creditors of the company were located in Brisbane.  Mr Hall, for the liquidators, also pointed out that the liquidators have briefed lawyers in Brisbane and, if the matter were to be transferred, additional costs would be caused to the liquidation.  He also submitted that the matter is, what he described as, “purely” a documents case and it could proceed with equal efficiency and expense in any location, including Brisbane.

4. In my view, none of the matters identified by Ms Rae affects the speed, efficiency or expense of the conduct of the pre-trial steps in this matter.  Some of those matters, however, could well affect the location, or locations, of the trial of the proceeding.  My reference to “locations” refers to the fact that it is open to the Court, as a national court, to conduct parts of the trial in different locations, including Hobart. There are, however, two further matters that I think dictate what should happen to this application, at least in the short term.  The first is that Mr Hall informed the Court that a public examination is presently listed to proceed before the Federal Circuit Court of Australia in Brisbane in August this year.  The second is that Mr Hall also informed the Court that the liquidators are considering whether to seek leave to amend the pleadings to expand the scope of the proceeding.  He intimated that they expected to be in a position to make a decision on this aspect by about September this year. 

5. Having regard to those two matters, I consider that, at this stage, the fairest and most efficient way to deal with this application is to adjourn it until a date to be fixed in about September this year. At that time, it should be possible to determine, with confidence, the fairest, quickest and most inexpensive and efficient location, or locations, for the remaining pre-trial steps in the proceeding and the trial.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:       

Dated:       5 July 2019

SCHEDULE OF PARTIES

QUD 240 of 2019
Defendants
Fourth Defendant:	ADRIAN JOSEPH PEREIRA