bata's submissions
22 BATA submitted that:
(a) (i) BATA had filed four substantial affidavits in support of its summary judgment application and did not anticipate that any witness would be required to attend the hearing of that application. If BATA were successful in its application for summary judgment, the proceeding (save for the quantification of damages or an account of profits) would be resolved.
(ii) A transfer would very likely lead to delay (which may be quite significant) while the proceeding was allocated to a Judge in Sydney.
(iii) The seventh respondent had delayed making her application, in circumstances where Mr Dai deposed that he first received instructions on 16 November 2012, met with the seventh respondent on 20 November 2012 and received instructions to make the transfer application on 20 December 2012. Although the seventh respondent filed a defence on 21 November 2012, she did not make the transfer application until 10 January 2013 and provided no explanation for the delay.
(b) The transfer application should be refused or alternatively, the summary judgment stage of the proceeding (at least) should be completed in Melbourne in accordance with the current timetable, consistently with progressing the case efficiently and in a manner that is proportionate to its complexity. See s 37M of the Federal Court of Australia Act 1976 (Cth).
(c) The convenience of the court favoured refusal of the application, as I was seized of the matter, had already determined one interlocutory application relating to the seventh respondent (see British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065) and had made various orders, including:
(i) interlocutory orders on 28 September 2012 and 1 November 2012 for the conduct of this proceeding; and
(ii) final orders (by consent) in relation to the First, Second, Fourth, Fifth, Sixth and Eighth Respondents on 1 November 2012.
(d) If the proceeding were transferred, another judge would have to familiarise himself or herself with the case, which, given the pending summary judgment application, would be an inefficient use of the court's resources.
(e) Based on the information presently available, the location of witnesses did not favour a transfer to Sydney as, of the four substantive affidavits filed by BATA, two of the deponents (Wade Telley and Daniel Plane) were based in Melbourne, the seventh respondent had identified no witnesses (if any) on whom she would rely upon and the third respondent had not participated at all in the proceeding to date. Further, if BATA were successful in its application for summary judgment, the liability phase of the case would be completed without the need for any witnesses to attend court.
(f) While its solicitors had a Sydney office, its anti-counterfeiting matters were managed exclusively by lawyers located in the Melbourne office. Prior to the commencement of the proceeding, BATA had retained counsel who now had detailed knowledge of it and had been involved in preparing BATA's application for summary judgment.
(g) Although Mr Dai deposed that the seventh respondent would suffer prejudice in the form of legal and travel costs should the proceeding remain in Melbourne, the costs were not identified, explained or quantified. Further, the seventh respondent did not demonstrate that any additional legal and travel expenses she might incur (if she were required to travel to Melbourne) would be unduly onerous or beyond her means.
(h) A transfer to Sydney would not eliminate the possibility that one of the parties would need to travel and incur the resultant costs. Rather, it would impose the need to travel on BATA's solicitors, counsel and witnesses. The potential cost would be shifted from one party to another, than eliminated, which did not promote efficiency.
(i) The seventh respondent could retain Melbourne-based counsel for any appearances and she or her legal representatives could appear by video or (for procedural matters) by telephone. The seventh respondent was unlikely to attend the summary judgment hearing, as Mr Dai deposed that she was not scheduled to return from China until mid-March, and travel costs could consequently either be avoided altogether or minimised.
(j) The allegations made by BATA did not call for the proceeding to be heard in Sydney and could be conveniently determined in the Melbourne Registry of the Federal Court, as they concerned a breach of a Commonwealth law and raised no issues of State law.
(k) BATA commenced the proceeding against eight respondents, alleging the sale of counterfeit Winfield cigarettes. As BATA's anti-counterfeiting lawyers were based in Melbourne, where (contrary to the assertions of Mr Dai), the first and second respondents were also based, the choice of venue was not capricious.