Franklin v GHF Pty Ltd

Counsel for the First Respondent / Cross-Claimant in the first Cross-Claim / First Cross-Respondent in the second Cross-Claim: Mr J Slattery

Solicitor for the First Respondent / Cross-Claimant in the first Cross-Claim / First Cross-Respondent in the second Cross-Claim: HWL Ebsworth Lawyers

Counsel for the Second Respondent / First Cross-Respondent in the first Cross-Claim / Cross-Claimant in the second Cross-Claim: The second respondent, first cross-respondent in the first cross-claim and cross-claimant in the second cross-claim did not appear

Counsel for the Third Respondent / Second Cross-Respondent in the first and second Cross-Claim: The third respondent and second cross-respondent did not appear

Counsel for the Fourth Respondent / Third Cross-Respondent in the first and second Cross-Claim: The fourth respondent and third cross-respondent and did not appear

Counsel for the Fifth Respondent / Fourth Cross-Respondent in the first and second Cross-Claim: The fifth respondent and fourth cross-respondent did not appear

Counsel for the Sixth Respondent / Fifth Cross-Respondent the first and second Cross-Claim: The sixth respondent and fifth cross-respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION TAD 14 of 2013

JUDGE: DAVIES J DATE OF ORDER: 31 JULY 2014 WHERE MADE: MELBOURNE

1. The first respondent's interlocutory application filed 17 July 2014 be dismissed. 2. The first respondent pay the applicants' costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION TAD 14 of 2013

JUDGE: DAVIES J DATE: 31 JULY 2014 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 These proceedings were issued by the applicants out of the Tasmanian District Registry in June 2013 and are now at a point when a trial date is likely to be fixed, with an estimated hearing of six days. The first respondent has applied pursuant to s 48 of the Federal Court Act 1976 (Cth) to have the trial of the proceeding conducted in Melbourne, instead of in Hobart. The application is opposed by the applicants but supported by the second to sixth respondents. 2 The principles to be applied in deciding the place at which a proceeding, or a part of a proceeding, shall be conducted, or continued, were set out in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 as follows: 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. … 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. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. … There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. … The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the other hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. 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. The authorities make it clear that whilst the balance of convenience is a factor to take into consideration, it is not the only factor and not necessarily a determinative factor: see, for example, Comello Pty Ltd v Feeney [2011] FCA 1334 at [11] per Gordon J; Nazdall Pty Ltd v Herrmann [2012] FCA 994 at [9]-[11] per Marshall J; Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrators Appointed) (in liq) [2009] FCA 227 at [15] per McKerracher J. The factors that may bear upon whether a transfer is justified will vary from case to case but in each case, the guiding principle is that there must be some sound reason to direct that the proceedings be conducted or continued elsewhere. 3 In the present case, no issue arises as to whether the proceedings were appropriately commenced in Tasmania as the first and second applicants both reside in Hobart and are the directors and shareholders of the third applicant, and the proceedings concern a business in Hobart, now carried on by the applicants. The applicants have alleged that the respondents engaged in misleading or deceptive conduct and unconscionable conduct in relation to the sale of that business to them. 4 The first respondent argued that the trial of the proceeding should be conducted in Melbourne, however, as most of the respondents and most of the proposed witnesses are located in Melbourne. The only parties not resident in Victoria are the applicants and the second respondent, who resides in New South Wales. Of the eleven witnesses expected to give evidence, only three are located in Tasmania (the first and second applicants and a witness they propose to call), one in Sydney (the second respondent) and the remainder are located in Victoria (the CEO of the first respondent, the third respondent, the fourth respondent, the two directors of the fifth respondent, the sixth respondent and one other witness). It is also anticipated that two expert witnesses will be called to give evidence, one for the applicants and the other for the first respondent. Both of the proposed experts are also located in Victoria. The first respondent also relies on the fact that most of the legal representatives are in Melbourne - being the applicants' solicitors (though not counsel) and the solicitors and counsel retained by the first respondent. The second to sixth respondents are representing themselves. 5 It was submitted for the first respondent that the cost and inconvenience of the judge, legal representatives and the vast majority of witnesses travelling to, and staying in, Tasmania for the duration of the trial of the proceeding greatly outweighs any expense and inconvenience associated with the applicants attending Melbourne for the duration of the trial. Reliance was also placed on the fact that the relevant contracts entered into by the parties provide for the laws of Victoria as the governing law. 6 Although the application is supported by the other respondents, of the other respondents only the sixth respondent attended before the Court to put submissions as to why the trial should be conducted in Melbourne. The sixth respondent informed the Court that the cost issue was very significant for her, which was why she no longer had legal representation. She also advised the Court that she would have other difficulties associated with the care of her child. 7 I do not consider that the convenience of the Court is a relevant factor as the Federal Court is a national court and is available to sit in all States and Territories. I also do not consider that any particular weight should be attributed to the fact that the applicants and the first respondent each have Melbourne based legal representation as they both will have costs associated with their legal teams travelling to Hobart for the purposes of the hearing. Nor do I consider that the choice of law clause in the relevant contracts has any bearing on the question as to the venue of the trial. The issue is not the choice of law but the most suitable venue. 8 Nor do I consider that the balance of convenience, so far as the parties and witnesses are concerned, clearly points to Melbourne as the more suitable place for trial. It may be accepted that there will be additional cost and inconvenience to the respondents if the trial is conducted in Hobart, but it is an inevitable consequence of the fact that the parties are not in the same jurisdiction that there will be additional costs and inconveniences to the party that is required to conduct their case interstate. Whether the case is heard in Hobart or Melbourne, there will be parties and witnesses who will need to travel interstate for the hearing. I am therefore not persuaded by the balance of convenience argument that Melbourne would be a more suitable venue for the hearing. 9 I do not consider that a case for changing the venue of the trial to Melbourne has been made out. In reaching that view, I have also given due weight to the fact that, apart from the sixth respondent, no respondent has pointed to some hardship that would be suffered by them if the trial is held in Hobart. I have given consideration to the matters that the sixth respondent put before the Court about her position but I do not think them reason enough for the trial to be conducted in Melbourne. As presently advised, it is unclear that she will actually be unduly disadvantaged if the trial does proceed in Hobart. 10 For these reasons the application is refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.