FEDERAL COURT OF AUSTRALIA
Wepar Nominees Pty Ltd v Schofield [2013] FCA 920
Citation: Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 Parties: WEPAR NOMINEES PTY LTD ACN 008 108 709 and IAN MCLEOD SMITH v DONALD WAYNE SCHOFIELD, ROGER CLARKE and JAYNE ELIZABETH STEELE File number: SAD 234 of 2012 Judge: BESANKO J Date of judgment: 13 September 2013 Catchwords: PRACTICE AND PROCEDURE – Application by second respondent to transfer the proceeding pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (Cth) from the South Australian District Registry to the Queensland District Registry – where first and third respondents support application – where applicants oppose application – whether the applicants’ choice of place is capricious – whether there is sound reason to direct that the proceeding be continued elsewhere – consideration of the interests of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court.
Held: The second respondent’s application dated 29 October 2012 be dismissed.
Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s12DA(1)
Corporations Act 2001 (Cth) ss 710, 728, 729, 731, 733, 1041H
Federal Court of Australia Act 1976 (Cth) Part IVA, s 48(1)
Federal Court Rules 2011 (Cth) rr 2.02, 5.04(3), Schedule 1
Federal Court Rules 1979 (Cth) O 10, r 1(2)(f), O 1, r 4, O 30, r 6Cases cited: Baxendale’s Vineyard Pty Ltd and Others v Geographical Indications Committee and Another (2007) 156 FCR 444
Cycles & Wheelman Pty Ltd and Others v Beltech Corporation Ltd (1988) 80 ALR 279
Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49
National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155Date of hearing: 14 June 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Applicants: Mr F Brohier Solicitor for the Applicants: Piper Alderman Counsel for the First Respondent: Mr C McLeod Solicitor for the First Respondent: Bartley Cohen Counsel for the Second Respondent: Mr P O'Higgins Solicitor for the Second Respondent: McCullough Robertson Counsel for the Third Respondent: Mr C Beames Solicitor for the Third Respondent: Johnson Winter & Slattery
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 234 of 2012
BETWEEN: WEPAR NOMINEES PTY LTD ACN 008 108 709
First ApplicantIAN MCLEOD SMITH
Second ApplicantAND: DONALD WAYNE SCHOFIELD
First RespondentROGER CLARKE
Second RespondentJAYNE ELIZABETH STEELE
Third Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
13 SEPTEMBER 2013
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The second respondent’s application dated 29 October 2012 be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 234 of 2012
BETWEEN: WEPAR NOMINEES PTY LTD ACN 008 108 709
First ApplicantIAN MCLEOD…
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- Case
- [2013] FCA 920
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide were whether the applicants' choice of venue was capricious and whether there was sound reason to direct that the proceeding be continued elsewhere. The court considered several factors in its decision, including the location of the parties, the location of witnesses and potential witnesses, and the likely duration of the trial. The court also noted that the Federal Court of Australia can hear evidence by video-link and can conduct part of a trial in one place and the other part in another place.
The court dismissed the second respondent’s application, noting that while there were some advantages to transferring the proceeding to Queensland, the applicants' choice of venue was not capricious and there were connections between the proceeding and South Australia. The court also noted that the proceeding, when ready, was likely to be listed for trial earlier in the South Australian District Registry than in the Queensland District Registry. The court concluded that it was open to the parties to apply for some of the evidence to be taken by video-link from Queensland and even to ask for part of the trial to be conducted in Queensland.
The final orders of the court were that the second respondent’s application dated 29 October 2012 be dismissed. The court noted that entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The second respondent’s application dated 29 October 2012 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In an application for transfer it is relevant to note that this Court can hear evidence by video-link and it can conduct part of a trial in one place and the other part in another place.The Likely Duration of the Trial It is difficult to be precise about the likely duration of the trial. An estimate of three weeks has been given. That estimate, or an estimate of four weeks if all issues are contested, is probably the best estimate that can be given at this stage.The Location of the Parties The first applicant is a small investment company owned by a Mr Brian Page and his wife. The company’s registered office is in Mount Gambier in South Australia and Mr and Mrs Page live in Mount Gambier. Mr and Mrs Page have some health problems and when the trial begins Mr and Mrs Page plan to stay with family in Adelaide. Mr Page is 68 years old. Mr Page read the prospectus and the ASX announcements in Mount Gambier and he instructed ABN Amro in Adelaide to purchase shares in White Sands. Mr Page states that because of his health, age and desire to be close to his family, he would consider standing down as lead applicant if the proceeding was transferred to Brisbane. As I have said, the second applicant passed away recently and he is yet to be replaced. His personal circumstances are no longer relevant to the determination of the present application. The first respondent lives in Coomera in Queensland and in his present employment he spends about half his time in Brisbane and half his time in Adelaide. The second respondent lives in Ascot in Queensland. The third respondent lives in Diddillibah which is about a 75 minute drive from Brisbane. She works three days a week in Brisbane and the balance of her time from the Sunshine Coast. The third respondent has school age children and her solicitor states that she would have extreme difficulty attending to her family and work responsibilities should a trial be held in Adelaide.The Location of Witnesses and Potential Witnesses The applicants have filed and served the evidence which they intend to rely on at the trial of this proceeding. The respondents are required to file and serve their evidence by 8 October 2013. The applicants have the right to file and serve evidence in reply. The applicants’ evidence and the location of their witnesses is as follows:(1)Mr Brian Page, who lives in Mount Gambier in the State of South Australia.(2)Mr Stephen Charles Fiske, a senior professional drilling consultant, who lives in Buckenderra in the State of New South Wales.(3)Mr Lawrence Arnold Fitzgerald, who owns a business called Westlands Engineering and Hydraulics. He states that he specialises in general repair in the agriculture industry and also the supply of parts and repairs for the oil and gas, railways and earthmoving industries operating in and around Roma in the State of Queensland. In his affidavit he gives an address in Roma.(4)Mr Ray Douglas Parker who is an oil rig survey and commissioning engineer. In his affidavit he gives an address in Bunbury, Western Australia. He states that he travels around the world, but is based in Western Australia.(5)Mr Paul Jorgensen who is a chartered accountant based in Adelaide.(6)Mr Philip Alexander Jay, an oil rig survey and commissioning engineer. In his affidavit, Mr Jay gives an address in Dulacca in Queensland.