Traill M.A & Ors National Australia Bank

[1994] FCA 1070

MALCOLM ADAMS TRAILL AND LEIGH MORRISON TRAILL, TRAILL INVESTMENTS PTY LIMITED
AS TRUSTEE OF THE TRAILL FAMILY TRUST AND TRAILL INVESTMENTS PTY LIMITED (IN
LIQUIDATION), M A TRAILL PTY LIMITED v. NATIONAL AUSTRALIA BANK LIMITED, DAVID
CORRIGAN, JOHN MACMILLAN, GREGORY GIBSON, MICHAEL MULLINS, ADRIAN TRIACA,
DAVID RUSTI, MARIA TRIACA, ALBERT ROMANIN, DANIEL MINOGU, CRAIG MacDOUGALL AND
PIA MARRONE TRADING AS "RENNICK AND GAYNOR SOLICITORS"
No. NG636 of 1994
FED No. 1070/94
Number of pages - 3
Practice And Procedure - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAZLEY J

CATCHWORDS

Practice And Procedure - change of venue application - factors to be taken into consideration - Federal Court Act 1976 (Cth): s 48.

Costs - desirability in a system of case management by the court for there to be communication between the parties before preliminary technical steps are taken.

Federal Court Act 1976 (Cth)

National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155

HEARING

SYDNEY
#DATE 17:11:1994
#ADD 17:3:1995 Solicitors for the Applicant: Messrs Koops Martin

By their city agents: Messrs Henry Davis York

Solicitors for the First Respondent: Messrs Malleson Stephen

Jacques

ORDER

THE COURT ORDERS THAT:
1. The proceedings be transferred to the Victorian District

Registry.

2. The applicants pay the first respondent's costs of the notice of

motion, filed 11 November 1994.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BEAZLEY J In this matter an application is made that the proceedings, including all directions hearings, be conducted or continued at the Victorian District Registry of this Court. An application is also made for costs.

1. The application for change of venue was filed on 11 November 1994, approximately one month after the first directions hearing in the matter. At that first directions hearing it had been indicated to me by the solicitor for the first respondent that an application for change of venue would be made. It should be noted that at the time of the first directions hearing, the second respondent had not been served.

2. Prior to the matter coming before me today, the solicitors for the applicants had notified the solicitors for the first respondent that they would consent to an order that the venue be changed to the Victorian District Registry of this court. The second respondents also support that application.

3. It is clear from the pleadings and from the affidavit material which has been filed in support of the application for change of venue that the proceedings have a very clear connection with Victoria, so that is the most appropriate place to conduct the entirety of the proceedings. It appears that all the parties are located in Victoria and all transactions which are subject of the applicant's claim were conducted within Victoria. There are certain aspects of those transactions which are subject to the law of Victoria.

4. There is nothing in the material before me which would indicate that there was any reason to commence the proceedings in this registry other than that the solicitors for the applicants are located in country New South Wales.

5. Section 48 of the Federal Court Act 1976 (Cth) provides that the court may order that the venue of proceedings be changed. This provision was considered by the Full Court of this Court in National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155. The Full Court noted that the power conferred on the court by section 48 was wholly unfettered and that it recognised the national character of the court. It further noted that the balance of convenience was a relevant consideration but not necessarily determinative in each case. Indeed, it noted that the relevant factors to be taken into account in a venue application on any particular matter would be numerous. It referred to the factor of residence of the parties and of witnesses; expenses to parties; the place where the cause of action arose and the convenience of the court itself as being some of the factors which would be relevant. In this particular case all of those factors are relevant and, as I have said, there is now consent that the venue be changed.

6. There are two factors in the matter which would indicate that it might not be appropriate that I make an order for costs in the matter. The first is the national character of the court and the fact that proceedings are properly constituted notwithstanding which registry they are commenced in. The other factor is that the first respondent filed its application without having rechecked with the applicants as to their attitude to the motion. I say rechecked because they had at an earlier point in time raised the question of the change of venue and at that time consent was not forthcoming.
   Consent was not forthcoming until 14 November 1994. However, on 11 November 1994, that is the day on which the notice of motion for change of venue and supporting affidavit were filed, the solicitors for the applicants had rung the solicitor for the first respondent but she had not returned the call prior to filing the motion. There is no explanation for the failure to return the call from either party.

7. In my view it is preferable in a court where proceedings are managed that there be communication between parties in relation to all steps which are taken before technical approaches to the litigation are taken, such as filing of notices of motion. Quite obviously, if the matters are not able to be easily, promptly and efficiently resolved between the parties, it is appropriate that applications be filed. In the normal course, I consider that there ought to be communication between the parties.

8. Having said that, however, it seems to me that in the absence of any material before me which would explain why the proceedings were brought in this registry rather than in the Victorian registry and given the apparent total lack of connection with anything to do with New South Wales, other than the presence of the solicitor for the applicants, I consider that it is appropriate that the applicants pay the respondents' costs of the motion.