South Johnstone Mill Limited v Dennis
[2009] FCA 232
•6 March 2009
FEDERAL COURT OF AUSTRALIA
South Johnstone Mill Limited v Dennis [2009] FCA 232
SOUTH JOHNSTONE MILL LIMITED v RICHARD JOHN DENNIS AND MICHAEL SCALES (RECEIVERS AND MANAGERS)
VID 142 of 2007
DOWSETT J
6 MARCH 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
VID 142 of 2007
BETWEEN: SOUTH JOHNSTONE MILL LIMITED
ApplicantAND: RICHARD JOHN DENNIS AND MICHAEL SCALES (RECEIVERS AND MANAGERS)
Respondent
JUDGE:
DOWSETT J
DATE:
6 MARCH 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an important question of practice for the Federal Court. However, the Court’s interest should not necessarily be visited upon the parties if to do so will be unduly expensive or unduly inconvenient for them.
The Federal Court has, throughout its history, been primarily based in the mainland state capital cities. However the Court regularly sits in Hobart, Canberra and Darwin. In states and territories other than Queensland, the provision of legal services is, particularly in the superior courts, centred on the capital cities. In Queensland, the position has, for most of the state’s history, been otherwise. Supreme Court Judges have been based in Bowen (not presently), Rockhampton, Townsville and Cairns. Magistrates and District Court Judges have been more widely dispersed. Decentralization has inevitably led to decentralization of the legal profession, with an expectation that legal services will be available in regional centres. The courts sit in identified centres on a regular basis. Decentralisation generally assists litigants by permitting them to litigate locally without the cost of travelling to Brisbane. Of course, decentralisation is not always convenient for all parties. It is not always possible to meet the convenience or preferences of all parties. It is often necessary to balance the interests of the parties, the witnesses and the public.
Although the Federal Court, for most of its history in Queensland, has been based in Brisbane, over the last six years we have sought to extend the service, particularly to Townsville and Cairns, centres in which justice has traditionally been administered in Queensland and in which the availability of high quality legal services is assured. This has led us to encourage parties to litigate in those centres when that is possible. Generally, there has been support for this course.
In the present case the applicant seeks to have the case conducted in Cairns whilst the respondents are particularly concerned to avoid that course. The case involves the sale of a sugar mill in North Queensland. Traditionally, there has been great public interest in such matters. Various newspapers cuttings, which are exhibited to Mr Stumer’s affidavit, demonstrate that the matter is of substantial public interest in North Queensland. It may, therefore, be in the public interest that the trial be conducted in Cairns.
There are other relevant considerations. The applicant proposes to call at least six witnesses who live in North Queensland. Clearly, there will be, for them, a great saving of time and, for the unsuccessful party, a saving of money if the matter be litigated there. There is also the possibility of a view. I do not put great weight upon that matter. Experience suggests that views are rarely of much assistance.
The respondents point to the fact that a conservative estimate of the additional cost to them of a trial in North Queensland would be something less than $50,000. Given that the trial is said to be likely to last for between two and four weeks, this does not seem to me to be a very large sum, relatively speaking. However, in absolute terms it cannot properly be overlooked. The witnesses to be called by the respondents are resident in either Brisbane, Sydney or Melbourne. Most of them are in Brisbane. Of course, savings to the respondents in not transporting witnesses to and from, and accommodating them in, Cairns must be measured against savings to the applicant of avoiding the cost of transporting their witnesses to and from, and accommodating them in, Brisbane.
The applicant’s lawyers are based in Melbourne, and so they will be, in any event, away from home. The respondents’ lawyers are based in Brisbane. It would not be appropriate to attribute significant weight to the convenience of practitioners. After all, parties are able to choose their lawyers. There is a substantial legal profession in Cairns, both solicitors and barristers. One would have thought that if cost were a problem, it could be accommodated by the use of town agents and/or local counsel. That would also be the position in Brisbane.
The primary focus of the respondents’ opposition to a trial in Cairns appears to be the professional commitments of Mr Dennis, one of the respondents. He is an accountant. His conduct as a receiver is at the heart of this case. He must be treated as a principal party as well as a principal witness. His ongoing professional responsibilities will be more easily met by his being present in Brisbane during the trial than by his being in Cairns. I give significant weight to that matter. However it cannot be determinative of the issue. It would generally be inappropriate for the Court to favour the interests of one party over others, based solely upon such personal considerations. A further consideration is the standard of electronic communications. To the extent that Mr Dennis’ attendance at the trial is necessary, one would have thought that it could be limited to the period during which he was actually giving evidence. Any further instructions or consultations could be conducted electronically. It is not uncommon for trials involving corporations to be conducted in circumstances in which the principal decision-maker is not present at the trial but is available to give instructions by telephone, should that be necessary.
I am inclined to the view that on balance, the best interests of the litigants and the public will be served by having the major part of the trial in Cairns. Should Mr Dennis ask that his evidence be taken in Brisbane I will be willing to accommodate that request. Should any other witness have a particular desire, at the time at which he or she is called, to give evidence in Brisbane, I will consider any application on its merits. Otherwise, the trial will take place in Cairns. I order accordingly.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 30 March 2009
Counsel for the Applicant: Mr SWS Peters SC and Mr PW Lithgow Solicitor for the Applicant: Maitland Lawyers Counsel for the Respondent: Mr D Kelly SC Solicitor for the Respondent: Allens Arthur Robinson
Date of Hearing: 6 March 2009 Date of Judgment: 6 March 2009
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