Australian Competition & Consumer Commission v Pauls Ltd

As to this, a Full Court of this Court has said in National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 at 162:

"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 be defined more closely or precisely." 7 The interests of the parties include such matters as the place of residence or business of the parties and their witnesses, the nature of the proceedings, the place where the cause of action arose and any matters of public interest. 8 Order 10 rule (1)(2)(f) does not carry the matter any further save that it includes some directions of a procedural nature. It provides that the Court or a judge may: "(f) direct that the proceeding be transferred to a place at which there is a Registry other than the then proper place. Where the proceeding is so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his charge relating to the proceeding to the Registrar at the proper place to which the proceeding is transferred." 9 Order 30 rule 6 acknowledges that the place of trial of a proceeding is to be the proper place. At present, the proper place is Darwin, which is the location of the Northern Territory registry of the Court. However, O 30 r 6(2) provides that: "(2) On the application of a party or of its own motion, the Court may direct that the trial, or part of the trial, of a proceeding be held at a place other than the proper place." 10 There are therefore, as counsel for the moving parties acknowledged, two different questions that have been raised by the orders that have been sought in the notice of motion. The first relates to the proper place. Should the proceedings, at least for the time being, be retained in Darwin, or should they, as the moving parties seek, be removed to Brisbane. The second and independent question is the ultimate location of the trial. If an order moving the proper place were to be made it would probably - although not conclusively - mean that the trial would be heard in Brisbane. On the other hand, if the proper place were to be retained in Darwin, it would not necessarily mean that the trial would have to be conducted in Darwin; there might be a case for arguing that it - or a substantial part of it - should be heard in Brisbane. I think that I can dispose of the question of the place of trial on a temporary basis. Although the moving parties argued that Pauls' place of business was in Brisbane and that Mr McCray and Mr Jardine lived in Queensland, neither they, the ACCC, nor any of the other respondents have placed before the Court details of their intended witness, their place of business, or their place of residence. It is true that most counsel and instructing solicitors come from the eastern states but not all of them are based in Brisbane. Some come from Sydney and another from Melbourne. It is really too early to make a decision about the ultimate location of the trial. 11 I turn then to the question of the proper place. 12 I have already mentioned that Pauls' principal place of business as well as its administration centre is situated in Brisbane. It does, however, have an office in Darwin. Mr Gibson also advanced, as part of his argument on the question of convenience, that the registered offices of Malanda and ACF and the place of residence of Mr See were all located in Brisbane. That particular argument cannot, in my opinion, assist Mr Gibson's clients. Those respondents could have, if they wished, supported his clients' application, but they chose not to do so. Although their position can only be regarded as neutral, it would not be appropriate to use their circumstances as matters in aid of the application, any more than it would be appropriate to use their circumstances as matters supporting the opposition of the ACCC to the orders sought. 13 Mr Gibson next argued that the solicitors and counsel representing his client reside in Brisbane but, as against that, the ACCC's counsel is based in Sydney. I have already noted that other legal representatives come from Sydney and Melbourne. It is, of course, the free and unfettered right of a litigant to arrange for legal representation from the State or Territory of its choosing. As Mr Gibson submitted, (although there was no evidence to this effect) a litigant might have a long standing relationship with its legal advisers and, for that reason alone, it might desire those advisers to act for it, irrespective of the location of the litigation. On the other hand, it was not submitted that competent solicitors and barristers are unavailable in Darwin. Therefore, if, in respect of a Darwin matter, a litigant denies itself the opportunity of competent local representation and chooses to be represented by interstate solicitors and counsel, it cannot then turn its free choice into a justification for a change of proper place. Its ongoing relationship with its advisers remains a matter to be weighed in the balance, but without the details of the relationship between the first, fourth and fifth respondents and their legal advisers, the application to transfer these proceedings to the Queensland Registry is not materially assisted by the fact that the first, fourth and fifth respondents' solicitors and counsel reside in Brisbane. 14 The affidavit of Mr Archos, the solicitor for the first, fourth and fifth respondents complains that the conduct of these proceedings in Darwin will mean that senior executives of Pauls will be required to spend time in Darwin thereby resulting in interference with their duties in their home state. That might well be the case but Pauls' chose to extend its business activities to the Territory. That choice presumably caused some time and energy to be expended in the Territory by some of its personnel. These proceedings are but a consequence of that time and energy. The subject matter of this complaint is one that is to be taken into consideration but because the business activities of Pauls are apparently extensive in the Territory it is not a matter to which I would attach great importance. 15 Save for the costs of travel no evidence was advanced by the moving parties that would point to further interlocutory issues being adversely affected by the location of the proper place. As to the costs of travel, they have been minimised in the past and, probably, would be minimised in the future by the use of video facilities. In any event no specific difficulty about future directions hearings or interlocutory applications was identified. 16 The remainder of Mr Gibson's submissions were directed, in the main, to the place of trial and, as I have already noted, they can remain for consideration on a later occasion. Questions such as travel and accommodation costs cannot properly be addressed at this stage because of the lack of particularity. 17 In Cycles & Wheelman Pty Ltd & Ors v Beltech Corporation Ltd (1988) 80 ALR 279, Gummow J heard a motion to direct the transfer of a proceeding from the New South Wales Registry to the Western Australian Registry. His Honour noted that the consequence of an order that the further conduct of the proceedings be at the Western Australian Registry was that Perth would be the "proper place" within par (b) of the definition of that term in O 1, r 4, with the result that under O 30, r 6 the trial of the proceedings would be at Perth unless fixed elsewhere. As to the test to be applied, his Honour observed: "It is not, in my view simply a question of the Court locating the balance of convenience, because the Court must be satisfied by the applicant that there be a change in the status quo and in the identity of the 'proper place' and that transfer be ordered. Nor, contrary to some of the submissions made this morning, is much guidance to be derived from cases in other jurisdictions, particularly those jurisdictions lacking the national character of this Court, and those providing for trial by jury of civil claims. There is in my view no useful purpose served, and some risk of mischief, by seeking to place upon the discretion of the Court in disposing of applications such as the present the fetters of any precise verbal formula. Particularly is this so where the matter is one of practice and procedure: see generally Jess v Scott (1986) 12 FCR 187." (p 281) 18 These remarks of his Honour were quoted with approval by the Full Court in National Mutual Pty Ltd v Sentry Corporation. 19 These present proceedings were appropriately instituted in the Northern Territory Registry; hence the Court must be satisfied that there is a sound reason to direct that the proceedings be conducted or continued elsewhere. While the balance of convenience will generally be a relevant consideration, it is not necessarily determinative: National Mutual v Sentry Corporation at 162; furthermore, the test of "manifest preponderance of convenience" is not the appropriate test for this Court to apply in considering motions under s 48 of the Federal Court Act and the Court's Rules: National Mutual v Sentry Corporation at 167. Although there is no onus as such on the moving party, the Court must be satisfied, after considering all relevant matters, that there is a sound reason to direct that the proceeding be conducted or continued elsewhere: National Mutual v Sentry Corporation at 162. Those matters were identified in these terms: "The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances." 20 There are three matters which, in my opinion, weigh the scales in favour of rejecting the application for a change in the proper place. The first is that most procedural steps and the pleadings have been handled without apparent difficulty through the Northern Territory Registry. The second matter is that the second and third group of respondents have remained silent with respect to this application. This raises a possible inference that they do not perceive a pressing need to change the proper place. The final matter is that this particular piece of litigation raises important questions of public interest for the Darwin community in particular and the Territory community in general. There is a most serious allegation that the respondents have engaged in a price fixing arrangement with respect to milk. Those allegations have been denied but until resolved they remain of intense interest to members of the public. 21 Other factors may, in due course, come to light that might outweigh this public interest and justify moving the trial - or part of it - to Brisbane. Until then, however, the matter should remain in Darwin. 22 It only remains to emphasise the national character of the Federal Court and its willingness, and the willingness of its judges, to assist litigants by engaging in cost-effective exercises. On occasions too numerous to mention, judges of the Court have sat in more than one location, both to accommodate the convenience of witnesses and to assist in reducing costs. I see no reason why that should not be an option to be explored by the parties to this litigation after they have finalised their preparations for trial. 23 The application to transfer the proper place to the Queensland Registry is refused. The application for an order that the trial of these proceedings be held in Brisbane is adjourned with liberty to any party to bring the matter back for further consideration on seven days notice. 24 The costs of the present application and these orders is referred to the trial judge. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate: Dated: 8 February 2002 Counsel for the Australian Competition and Consumer Commission : Mr Ian Tonking

Solicitor for the Australian Competition and Consumer Commission: Australian Government Solicitor

Counsel for the First, Fourth and Fifth Respondents: Mr G J Gibson QC

Solicitors for the First, Fourth and Fifth Respondents: Biggs & Biggs

Counsel for the Second and Third Respondents: Mr I Wylie

Solicitors for the Second and Third Respondents: Blake Dawson Waldron

No Appearance for and on behalf of the Sixth Respondent:

Solicitor for the Seventh Respondent: Clayton Utz

Date of Hearing: 4 February 2002

Date of Judgment: 8 February 2002