Sun Microsystems Australia Pty Ltd v Graphics Computer Systems Pty Ltd

[1989] FCA 519

NOT FOR DISTRIBUTION

JUDGMENT No. .a.!..?. %...*.L

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NG 37 OF 1989
)
GENERAL DIVISION

BETWEEN :  SUN MICROSYSTEMS AUSTRALIA
PTY LIMITED

Applicant

GRAPHICS COMPUTER SYSTEMS

PTY LIMITED & ORS

Respondents

28 JULY 1989

REASONS FOR JUDGMENT

LOCKHART J.

This matter was in the list this morning for directions, and the applicant and the respondents together asked that the matter be transferred to the Melbourne reglstry of this Court.

Reasons supporting the transfer were given from the bar

table, and are contained in a letter which was handed to me, being a letter from Messrs Betar and CO, Solicitors, to Mr Seib, of Messrs Clayton Utz, of 21 July 1989, in particular, in pages 2 and 3 of that letter. There is no evidence, at this stage as to matters which would support the appllcatlon of the transfer of the matter to Melbourne. In essence what 1s put is that most, if not all of the witnesses that wlll be involved in the case reside in or about Melbourne;

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solicitors o r the respondents are a firm

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solicitors and although the solicitors for the applicants are
Sydney based solicitors, they also have a Melbourne offlce.

On the material presently before me it seems that the

appropriate course to take is elther at some future stage,
prior to the hearing, to have the matter transferred to
Melbourne; or alternatively to keep the matter in thls
registry, but to hear the matter in Melbourne.

On that issue I have no firm view and if any party wishes to press it further they may do so by appropriate evidence. However, the position is complicated by the fact that there are on foot proceedings in the County Court in Victoria in which the first respondent is the plaintiff and the applicant in this matter is the defendant.

An agreement has apparently been reached between the
parties to the effect that the matters that are in issue in

the County Court proceedings, are to be made issues in the

proceedings in this Court, in particular, by the filing by the	first respondent of a cross claim in this Court whlch will
encapsulate many of the issues in the County Court proceedings.
Neither party, of course, wishes to be disadvantaged by the issues in the County Court proceedings being brought across to this Court. The arrangement between the parties, as I understand it, is broadly to the effect that provided the issues in the County Court proceedings are made issues in these proceedings, ln particular by the first respondent's cross claim, and provided the matter is heard in Melbourne and posslbly also transferred there at some earller time then the County Court proceedings will be discontinued and that Court asked to make no order as to costs to the intent that the costs of both parties in those proceedings will be costs in this Court's proceeding. In other words, whatever orders for costs are made by this Court in this proceeding, will carry with them the costs lncurred in the County Court proceedings by the relevant parties.
The parties are obviously concerned that the matter should be heard in Melbourne or possibly transferred there,
but I am not persuaded that the time is right for the transfer. On the other hand, it may emerge later that lt
should be transferred to Melbourne and I will do so. But certainly, as I indicated to the partles now, it does seem appropriate to hear it there, which is the nub of the problem.

Certain directions must be made, so I make them now as

follows:

1. I dlrect the applicant to serve on the solicitors for

   the respondents answers to the particulars sought in the letter of 16 June 1989 from Messrs Betar and CO to Messrs Clayton Utz, being particulars numbered 6, 7, 8, 27, 28, 29, 38, 39, 42 and 43 on or before 11 August next.

2. I direct the respondents to file and serve and cross

   claim on or before 18 August next.

3.	I dlrect the applicant to file and serve ~ t s reply and
any defence to cross claim on or before 8 September next.

4.      The matter is adjourned for further directions to 15 September next at 9.30.

The letter of 16 June 1989 should remaln on the flle as should the letter of 21 July relatlng to the transfer to
Melbourne.	Those two documents will together be marked
exhiblt 1.

I certlfy that thls and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the HonourabJe Mr. Justice Lockhart.

Associate
Dated: 28 July 1989

Solicltors for the Applicant:	Clayton Utz
Counsel for the Respondents:	Mr. Gray
Sollcltors for the Respondents:	Betar and Co.
Date of Hearing:	28 July 1989
Date of Judgment:	28 July 1989