Worchild v Young

[2007] FCA 2047

FEDERAL COURT OF AUSTRALIA

Worchild v Young [2007] FCA 2047

ANDREW WORCHILD v ROBERT YOUNG AND GARY PASK AND MARGARET PASK

NSD 2136 OF 2007

FLICK J
10 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2136 OF 2007

BETWEEN:

ANDREW WORCHILD
Applicant

AND:

ROBERT YOUNG
Respondent

GARY PASK
Second Respondent

MARAGARET PASK
Third Respondent

JUDGE:	FLICK J
DATE OF ORDER:	10 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be transferred to the Queensland District Registry of the Federal Court of Australia.

2.The balance of the Notice of Motion as filed on 30 November 2007 be stood over to a date to be fixed.

3.Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2136 OF 2007

BETWEEN:

ANDREW WORCHILD
Applicant

AND:

ROBERT YOUNG
Respondent

GARY PASK
Second Respondent

MARAGARET PASK
Third Respondent

JUDGE:	FLICK J
DATE:	10 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Presently before the Court is a Notice of Motion seeking a variety of orders including orders that the proceedings be dismissed pursuant to O 20 r 2 of the Federal Court Rules 1979 (Cth) and that the matter be transferred to the Federal Court at Brisbane. 

2. When the matter was called on for hearing at 10:15am there was no appearance for the Applicant.  Attempts to contact him via the telephone number provided on his Application proved unsuccessful.  The proceedings were stood down and during that adjournment, further attempts to contact the Applicant via his email address provided on the Application also proved unsuccessful.

3. The proceedings had previously been before Allsop J of this Court on 23 November 2007.  On that occasion, his Honour granted leave to the Respondents to file a Motion seeking the transfer of the proceedings to the Queensland District Registry.  On 4 December 2007 the Applicant was advised by way of letter of a communication from the Registry of the Federal Court notifying the parties that the proceedings would be listed for hearing of the Motion this morning.  The Motion was heard.

4. It is considered that the matter should be transferred to Brisbane pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) and in accordance with Order 3 as sought in the Respondent’s Notice of Motion.

5. The principles to be applied when considering whether or not proceedings should be transferred have been summarised by Bowen CJ, Woodward and Lockhart JJ in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155. In particular, their Honours stated:

   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 determination 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.

6. Factors that have been taken into account when considering whether the matter should be transferred include the fact that the dispute concerns an apartment building located at Chevron Island in the State of Queensland, the fact that the Respondents all reside in Queensland and the fact that the Respondents are represented by a Queensland solicitor.  Moreover, the Applicant’s address for service is an address at Byron Bay, an address in New South Wales but an hour’s drive from Brisbane.  The Applicant states that he intends to move to Sydney “for increased prospects of employment in the immediate future.”  The Statement of Claim as presently drafted, however, stated that it is “commenced by the Applicant as a representative party under Pt 4A of the Federal Court Act 1976.”  The “group members” are thereafter set forth as persons including the occupiers of other units in the apartment building, namely persons resident in Queensland.

7. In short, it is considered that this is a Queensland case: see Gance v Ellis [2005] FCA 833. It is in the interests of the parties that the proceedings be conducted in Brisbane. The application to have the proceedings dismissed or stayed could of course be heard in Sydney. Whatever orders may be made in respect to the Motion, however, there remains the prospect that further proceedings may be sought to be instituted or even the prospect that the Applicant may seek to amend the existing pleadings.  Rather than starting to manage the matter from Sydney it is considered that it is in the interests of all of the parties and the efficient administration of the Court that the matter be transferred at the outset to Brisbane.  It remains a matter for the judge of this Court who hears the balance of the Notice of Motion in Brisbane how that Court wishes to proceed. 

8. The Statement of Claim, it may be observed, has self-evident deficiencies.  Whether or not the Applicant wishes to seek to amend the Statement of Claim prior to the balance of the Motion being heard is a matter for him. 

9. Any further motion to have the proceedings transferred back to New South Wales District Registry will be dealt with if and when made.

   ORDERS

10. The orders of the Court are:

    1. The proceedings be transferred to the Queensland District Registry of the Federal Court of Australia.
    2. The balance of the Notice of Motion as filed on 30 November 2007 be stood over to a date to be fixed.
    3. Costs be reserved.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 28 December 2007

Counsel for the Respondent:	H M W Stitt
Date of Hearing:	10 December 2007
Date of Judgment:	10 December 2007