Smith, K.R.B v Yoram Gross Film Studios Pty Ltd

[1990] FCA 592

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No VG 82 of 1989
)
GENERAL DIVISION	1
IS1 JOSEPH LEIBLER and NAOMI HELEN LEIBLER
(Applicants)

AND :	YORAM GROSS FILM STUDIOS PTY LTD. YORAM JERZY GROSS and RACHEL ALEXANDRA GROSS
(Respondents)

Coram: Ryan J

m: 5 October 1990	RECEIVED
2 9 OCT 1990
Place: Melbourne

PRINCIPAL

RMlSTRY

EX TEMPORE REASONS FOR JUDGMENT

These proceedings had been instituted in the Melbourne Registry of this Court on 7 April 1989. Shortly afterwards the respondents moved on notice of motion dated 22 May 1989 for an order that the proceedings be transferred to the New South Wales District Registry of the Court. In the meantime some interlocutory steps have been taken and directions hearings have been held in Melbourne. It appears that several interlocutory steps remain to be taken including the provision of discovery and inspection of what might be a voluminous body of documents to be

discovered by the respondents.

It is apparent from the affidavits filed on both sides directed to the question of whether an order for transfer should be made that it would be more convenient for the applicants if the trial were to be held in Melbourne and more convenient for the respondents if the trial were to be held in Sydney.

I do not consider it appropriate on an application of this kind to engage in a fine balancing of these competing conveniences. I agree with the observations of Gummow J. in Cvcles & Wheelman Ptv Ltd v Beltech Coruoration Ltd (1988) 80 A.L.R. 279 at 281:

"There is in my view no useful purpose served, and some risk of mischief, by seeking to place upon the discretion of the Court in disposing of applications such as the present the fetters of any precise verbal formula. Particularly is this so where the matter 1s one of practrce and procedure: see generally Jess v Scott (1986) 12 FCR 187; 70 ALR 185. In that report (FCR at 196; ALR at 194), the Full Court indicated that a discretionary power given by the rules of court should not itself become entangled in a web of rules spun out of the drscretionary decisions of the Court. The Full Court continued: 'Decrslons are not authorities upon the facts but upon principle; the facts must be regarded as unique to the particular case'."

It is accepted on both sides that as far as any principle capable of application to contests of this kind can be distilled	from the relevant provisions of the Federal Court Act and the
Rules of this Court, it has been enunciated by a Full Court of this Court in National Mutual Holdinas Ptv Ltd v The Sentrv Cor~oration (1988) 19 F.C.R. 155 in the judgment of the whole Court at 162:

"The power conferred by s48 recognrses the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearrngs or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the

place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in partrcular circumstances.

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under 648 or 010, rl(Z)(f) or 030, r6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the court may exerclse its powers under 030,r6 either on the application of a party or of its own motlon. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Couxt would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some trme at the place of commencement wrth many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspectron. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.

The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determrnation of the issues between them, and the most efficient administration of the court. It cannot and should not, in our opinion, be defined more closely or precisely."

Having regard to those observations and applying them as well as I am able with the limited reflection that I have been able to give to the facts of this case, I am not persuaded that	these proceedings should be transferred to Sydney for the purpose	of conducting the remaining interlocutory steps. Of significance
in reaching this conclusion has been MS Lewitanrs concession that the applicants would not require inspection of documents to be provided in Melbourne, but would undertake that inspection in Sydney.
This Court, as the Full Court observed in the passage from National Mutual Holdinas Ptv Ltd v The Sentrv Coruoration (su~ra) is a national Court. As such it has a facility for affording a hearing of different parts of a case in the capital cities of different states, if the interests of justice and the convenience of the parties and the Court are seen to favour that arrangement. I consider that the appropriate course in this case is to allow the completion of interlocutory steps subject to what I have said about inspection of documents by the applicants, to continue in the Victoria Registry of this Court. I consider that once those steps have been completed the matter should be fixed for hearing and a final directions hearing should be conducted by the trial judge (who may not necessarily be a judge ordinarily resident in Melbourne). That judge can then, after hearing the parties, determine on a mode of hearing which as far as possible will accommodate the convenience of the parties and the orderly conduct of the case. For those reasons I decline the motion at this stage. However, in the circumstances, I consider that the costs of the motion should be reserved.

I certify that this and the preceding three

(3) pages are a true copy of the Reasons for
Judgment of His Honour M r Justice Ryan.

Date:  5 O U V B M /99o

Counsel for Applicants:	MS R.A. Lewitan
Solicitors for Applicants:	Shugg & Company
Counsel for Respondents:	M r M.T. Bevan-John
Solicitors for Respondents:	Martin Cooper.& CO
Date of Hearing:	5 October 1990
Date of Judgment:	5 October 1990