Seapeace Ltd v Meridian Marine Sales Ltd

[1995] FCA 1156

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY           No VG 792 of 1995

GENERAL DIVISION

B E T W E E N :

SEAPEACE LIMITED
  Applicant

A N D :

MERIDIAN MARINE SALES LIMITED AND OTHERS
  Respondents

COURT:    NORTHROP J

PLACE:    MELBOURNE

DATE:     16 NOVEMBER 1995

REASONS FOR JUDGMENT

This is the return of a motion by the first three respondents to this proceeding seeking to have the whole of the proceedings transferred from Melbourne to Perth in Western Australia.  The application was commenced on 21 September 1995 and at the first directions hearing on 24 October 1995 a question of the venue for the hearing of this matter was raised.  Pursuant to matters raised during that directions hearing, the motion was issued on 2 November 1995 seeking both security for costs and also for the transfer to Western Australia.  The matter for security for costs has been completed and need no longer worry the Court.  The only remaining issue is in relation to whether there should be a transfer from Melbourne to Perth.

The cause of action arises out of the manufacture or making of a large ocean going yacht by the first respondent pursuant to a contract entered into between it and the applicant.  The applicant, itself, is a company incorporated in the Isle of Jersey in the Channel Islands.  The first respondent is a company incorporated in Monte Carlo but carries on business, among other places, in Perth in Western Australia.  As I understand it the second and third respondents are companies incorporated in Western Australia.  The fourth respondent, essentially, is a New South Wales concern in that it regulates the construction of the building of yachts for the purposes of ensuring certain specifications are adhered to for the purposes of registration but also carries on business in Perth.  The two directors of the applicant reside in Melbourne but it is fair to say that they are business people in a very large way.  This is illustrated further by the fact that they are able to be the controlling minds of this company, the applicant, which is incorporated in the Isle of Jersey.  On the material before the court, none of which is really in dispute, it is quite clear that the contract was made in Western Australia.

The claims being made on behalf of the applicant are first, damages for conduct in contravention of section 52 of the Trade Practices Act and it appears that the conduct complained of occurred in Western Australia.  In addition, there are claims for breach of warranty, breach of contract, all of which occurred in Western Australia and the contract itself was made in Western Australia.  The contract provides that the law of Western Australia is to apply to the contract.  There are claims also for, as I understand it, negligence in
the construction of the yacht.  Looking at it dispassionately, it appears that everything arising out of the contract, the construction of the yacht, the events leading up to the making of the contract all occurred in Western Australia.  The impression one has is that this, essentially, is a Western Australian matter.

An applicant has a right to choose any place as a proper place for the hearing of an application brought in the Federal Court.  In the present case there is no suggestion that Melbourne was chosen capriciously.  The principles to be applied in determining whether there should be a transfer or not are enunciated by a Full Court of this Court in National Mutual Holdings Pty Limited v Century Corporation (1988) 19 FCR 155 at page 162. I do not need to repeat them now.

There is an unfettered discretion given to the Court to make such an order.  There is no onus of proof but consideration must be given to the fact that the applicant has chosen Melbourne as the proper place.  It is not a case of counting heads as from where the witnesses come from, where are the documents housed or kept and matters of that kind, although they are all factors relevant to form an overview of what the true position is.  In the present case the yacht is a large seagoing yacht operating in the pacific area.  When repairs were required it went to Auckland in New Zealand.  On the way to the Pacific area it had to call in at Port Douglas for the purpose of some repair work under the maintenance terms of the agreement.  Some of the crew, who apparently,
live on the ship, may be required to give evidence.  Likewise, in relation to people who did repairs in Auckland and in Port Douglas will be called.  As well witnesses may be called in relation to the fourth respondent.  They live in Sydney.  The two directors of the applicant reside in Melbourne.  All their records, apparently, are in Melbourne.  Their solicitors are in Melbourne and the solicitors apparently do not have a branch or an associated firm in Perth whereas it is said that the respondents at least are able to cope with the tyranny of distance between Perth and Melbourne as illustrated by the speed by which they have coped with the paperwork relating to this matter.  No matter where this case is heard it will mean that many witnesses will have to travel large distances to the Court hearing the matter whether it is in Melbourne or Perth.  If it is in Melbourne it appears that only two witnesses are resident in Melbourne, the two directors concerned, and having regard to their position it seems to me that they would not find the task of travelling to Perth beyond their means or capabilities.  If the hearing is in Melbourne it would appear that every other witness would need to travel long distances to reach Melbourne, the shortest destination being Sydney.  In addition it is said that all the witnesses for all the other respondents, apart from those in Sydney would need to come from Western Australia.

These days with travel the way it is, once a plane has been boarded it doesn't make much difference whether the travel is from Port Douglas to Melbourne or Port Douglas to
Perth.  Likewise with Auckland, the distances may be greater
but the travel must be undertaken.  It has also been argued that the paperwork involved, the paperwork being in Melbourne, would involve problems by being transferred across to Perth and this could give rise to problems particularly having regard to the position of the legal advisers of the applicant.

It was also submitted, as an alternative argument, that if the Court were against the major submissions made on behalf of the applicant, all the interlocutory steps should be done in the Melbourne Registry and the hearing could take place in Perth.  In my opinion that is undesirable.  It is far better to have the proper place as one place both for the interlocutory steps and the hearing in a case of this kind.

Having regard to all the matters I have mentioned, including the fact that the applicant commenced the proceedings in Melbourne, I have formed the view that this matter essentially is a case arising in Western Australia.  The Western Australian Law is to apply to the contract and that in all the circumstances it is appropriate that this matter be transferred to Perth.  As I have already indicated I do not think it is appropriate to direct that the interlocutory steps take place here and the main hearing then in Perth.  It is also noted that the motion for the transfer has been made on behalf of the first three respondents, the views of the fourth respondent being neutral on this issue.

Orders accordingly.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the Applicant:       Mr A.G. Southall

Solicitor for the Applicant:     Holding Redlich

Counsel for the First, Second
and Third Respondents:           Mr A.J. Ryan

Solicitor for the First, Second
and Third Respondents:           Middletons Moore & Bevins

Counsel for the Fourth
Respondent:  Mr A.M. Donald

Solicitor for the Fourth
Respondent:  Parker & Parker

Date of Hearing:                 16 November 1995