CMC (Australia) Pty Ltd v Austral Asia Line B.V.

1 This is an application made by the defendant carrier under s 48 of the Federal Court of Australia Act 1976 (Cth) by notice of motion filed on 7 June 2004 that these proceedings be transferred to the Queensland District Registry of the Federal Court of Australia. The motion is not one under s 27 of the Admiralty Act 1988 (Cth)which might perhaps have been expected given some of the correspondence between the solicitors. Thus, the issue is one whether the transfer should be made to the Queensland District Registry of the Federal Court. 2 Solicitors for both parties have filed affidavits deposing to likely witnesses and issues and places of residence of those witnesses. I will come to the detail of that in due course. The governing principles of an application such as this are authoritatively laid out in the joint judgment of Bowen CJ, Woodward J and Lockhart J in National Mutual Holdings v Century Corporation (1988) 19 FCR 155. At page 162 the court said the following: The purpose of the provision in the rules of a "proper place" is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding. The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by s 48 recognises the national character of this Court. 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. 3 The first of the above paragraphs is often ignored in applications such as this and I do not say that disrespectfully of Ms Wilmshurst's submissions. She did not ignore it but it is a difficulty for her in this application. The purpose of the provision is to ensure the orderly and efficient conduct of the Court's business requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is proceeding. 4 This is not an application between two state courts as to what is the more convenient forum. The decision of the Full Court in National Mutual in its approval of the decision of Gummow J in Cycles v Wheelman and Beltec Corporation (1988) 80 ALR 279 makes that clear. Of course the factors concerned in a forum conveniens case are relevant and important to the exercise of discretion under s 48, but two things need to be understood in claims such as this under the Admiralty Act. First, this is the exercise of federal jurisdiction, whether the jurisdiction is exercised by a federal court, in this case the Federal Court, or a state or territory court. All courts in these circumstances are exercising the authority of the Commonwealth of Australia. Secondly, this Court is a national court able flexibly to arrange its affairs such that a Judge can hear evidence in any part of the Commonwealth of Australia. Applications of this kind should not be viewed approached in a manner more akin to applications prior to the existence of a national court whereby one side seeks to badge or claim ownership of a matter by reference to it being a matter that can be seen as belonging to the state of that party. Not only is that inapt in a national court. It is inapt in the exercise of federal jurisdiction. 5 The question, as the Full Court in National Mutual said is the location of the registry for the most orderly and efficient conduct of the Court's business. The choice is to be made bearing in mind the justice of the case to all parties. In this respect assistance is to be given not only by the expression of principle which the Full Court expressed in National Mutual but to the illustrations of that principle in earlier single Judge decisions discussed by the Full Court as illustrations of the proper approach. In particular, I refer to what Spender J said in Jacobs v Claudius Enterprises (1985) ATPR 40-511 and what Pincus J said in Hodder v The Australian Workers Union (1984) 4 FCR 541. 6 I do not use those cases as surrogates for the principles expressed by the Full Court in National Mutual, but they illustrate that it is not simply a question of identifying where the witnesses will be. Turning to the evidence here, the plaintiff here has its head office in Sydney. On the state of the correspondence it is not clear to me that there will not be title to sue issues. On the state of the helpful discussions, if I may say so, between the solicitors as to the issues, it is not clear that there will not be the need for expert evidence as to the proper method of carriage of pipes of this dimension and as to whether there should have been some statement or warning to the carrier as to the inherent weakness of pipes of this kind. It may be that that is the most central evidence in the case. I do not know where those witnesses will come from. It is also not clear on the evidence that there will not be any necessity for evidence from witnesses at the port of loading, which was in Thailand. It may be more convenient to have that international evidence heard in Sydney; it may be marginal as to whether Sydney or Brisbane is appropriate. It does appear that there will be the need for a number of Brisbane witnesses to give evidence as the cargo was discharged at the Port of Brisbane, two surveyors examined it, one on behalf of the plaintiffs, one on behalf of the defendant carrier. There was asserted by the plaintiffs to be agreement between the surveyors but this apparently is not the case. 7 There may be an issue as to the responsibility of the carrier for the goods from the point of passing over the rail of the ship to delivery, carriage being from Thailand to Australia. The application of the Hague-Visby Rules may need to be considered and whether or not the port-to-port extent of those rules applies in this case. If it does not and if it is necessary to understand whether the damage which apparently is agreed occurred, at least to some degree, occurred in the carriage or in the handling by the stevedores, Stevedoring evidence will come, of course, from people in Brisbane; though this evidence may well not be necessary if the carrier is responsible for all acts undertaken up to the point of delivery. 8 It may well be when the issues in this case and the evidence are more mature that in the flexible and wide powers that the Court has to conduct its proceedings, I will take the view that the matter should be transferred to the handling of a Judge in Queensland or it may be that some of the evidence needs to be taken in Queensland. If after preparation it is clear that the only evidence which will be taken will be in Queensland, the real issue will arise at that point in the exercise of the Court's discretion whether the case should be heard in Queensland. That does not mean, however, that the business of the Court in managing the controversy pre-trial must of necessity be done in Queensland. That does not follow at all in a national court. 9 I do not propose to make an order under s 48 as asked. This matter is between one group of clients who wish the Sydney lawyers to deal with the matter in the Sydney Registry and another client that who wants to have the matter prepared in Brisbane. The situs of the registry which handles the custody in charge of the file and the situs of the interlocutory judge who deals with the preparation of the matter for hearing is in one sense irrelevant to this. 10 The solicitors, Thynne McCartney are, I assume, the relevant p & i Club's solicitors. They can appear at directions hearings by video-link if necessary. There is no need for "double handling" in preparation. This is a function of the fact that this is a national court. 11 As I said, once the preparation of this case is more advanced it may be that it becomes apparent that the only place that evidence is going to be received is Brisbane or that there is a significant body of evidence which will be more conveniently heard in Brisbane. That can be done. If it is of such a character that it is more appropriate for the case to be moved to the Queensland Registry, that can be done as well. At the moment, however, the proposition that discharge brands the case as one inappropriately brought in the Sydney Registry is simply wrong. 12 The evidence that was led contains some assertions as to the inability of the Court to give a timely hearing, though in the evidence placed before me no reliance was placed on it, in part, perhaps, because I indicated when this matter came before me on Monday that Hely J was in a position to commence the hearing on 18 October of this year. That is still the position. 13 At the moment I do not intend to fix the matter for hearing in the absence of understanding from the parties a little more about the development of the evidence. 14 If that means that those dates from Hely J disappear we will have to find other dates. However, I will give the parties the opportunity here and now to ask for those dates if they want them. 15 As to the motion filed on 7 June 2004, I dismiss that motion. 16 The question of costs arises. The normal rule is that costs follow the event. The considerations against the making of an order for costs are as follows. The correspondence between the solicitors was, if I may be permitted to say respectfully, not everything that I would have hoped to have seen from solicitors of this standard conversing with each other in writing and I am forced to say that that is not directed at the plaintiffs' solicitors. 17 I also hasten to add that it is not the content of what was said that I make reference to, any of the content. Solicitors are entitled to express views that they hold frankly in correspondence between them. There was, however, a certain belligerence in the correspondence that was unfortunate. That said, however, and hoping that it does not occur again, there was an overlooking of the fact that this is the exercise of federal jurisdiction in a national court. 18 Nevertheless, the correspondence which could have, I think, with respect, been expressed differently, did cause to be thrown up considerations and issues that may well have had the effect of concentrating the minds of the solicitors and the parties on the issues in the case with a degree of concentration earlier than they might otherwise have been. This will have sped up preparation. Thus, I do not think there has been a huge amount of wastage of costs. 19 There has also been a directions hearing today. Perhaps there has been an unnecessary appearance. I think in all of the circumstances, however, the order that I will make is that the plaintiff's costs of the motion be costs in the cause, but not the defendant's costs of the motion. Included in those costs is the cost of the appearance today because I think that if the motion had not been brought, directions could have otherwise been dealt with on the first return date. 20 The costs of today should be seen as the costs of the motion. Therefore, I dismiss the motion filed on 7 June and I order that the plaintiff's costs of the motion be its costs in the cause.