INSURANCE LIMITED, and AUSTRALIAN CASUALTY COMPANY LIMITED v THE

Federal Court of Australia|1988-07-26|Before: Lockhart JJ, Jenkinson J

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE SENTRY CORPORATION and PEAT MARWICK MITCHELL & CO. (A Firm) Respondents

ACC GENERAL INSURANCE LIMITED AUSTRALIAN CASUALTY COMPANY LIMITED

This is a motion for leave to appeal from an interlocutory judgment of a single Judge of this Court (Jenkinson J.) given on 26 April 1988, dismissing motions of the second respondent, Peat Marwick Mitchell & Co., seeking orders (a) that the trial of the proceeding be fixed at Sydney; and (b) that Sydney be the "proper place" of the proceeding for the purposes of 0. 30 r. 6 of this Court's rules. As the proceeding was commenced in the Court's Victorian District Registry, Melbourne is the "proper place" within the meaning of that

expression in 0.1 r.4 of the rules unless a transfer is ordered.

With the consent of the parties, the Court heard together the

arguments on the motion for leave to appeal and on the appeal itself.

The case raises an important question as to the proper principles to be applied by this Court in deciding the place at which

a proceeding or part of a proceeding shall be conducted or continued.

The relevant circumstances may be briefly stated. The first applicant, National Mutual Holdings Pty. Limited, acquired from the first respondent, The Sentry Corporation, all the issued shares in the capital of the second applicant, ACC Holdings Limited, which has at all material times owned all the issued shares in the remaining four applicants. The applicants allege that the acquisition by the first applicant was induced by erroneous statements in the financial records of the other applicants and that the second respondent, a firm of chartered accountants which audited those records, is responsible for

the errors. Relief is sought based upon several causes of action.

The proceeding was commenced in the Victorian Registry of this Court on 3 July 1987. Since then directions have been given to Prepare the case for hearing, pleadings and affidavits of discovery

have been filed and inspection of documents is presently taking place.

The principal place of business of the first applicant is in Melbourne. The principal place of the businesses of the other applicants is in Sydney. The first respondent is an American corporation with no current business in Australia. The two natural persons who are cross-respondents live in Sydney. The trial is expected to occupy weeks, perhaps even months, and preparation for trial is expected to occupy a great deal of time and to involve the activities of many people. Most of the activities out of which the matters in dispute arose took place in Sydney and were the activities of residents of Sydney. The second respondent's witnesses and legal and accountancy advisers are nearly all residents of Sydney and the relevant records in the second respondent's possession are in Sydney. Most of the relevant records in the possession of the applicants are in Melbourne, many of the witnesses fo be called by the applicants reside in Melbourne and the legal and accountancy advisers of the applicants, most of whom have been engaged in the preparation of the

In concluding that the second respondent's motion should be dismissed, Jenkinson J. applied the test that "the venue" shall not be changed unless the Court is satisfied that there is a manifest

preponderence of convenience in support of the change. His Honour

followed the decisions of Pincus J. in Hodder v. The Australian

Workers' Union (1984) 4 F.C.R. 541 and Right Home Improvements

International Pty. Limited v. Imperial Alarm Screens (Aust) Pty.

Limited (1986) A.T.P.R. para. 40-641 and of French J. in T.V.W.

Enterprises Limited v. Magna Techtronics (Aust) Pty. Limited

(unreported; WAG 62 of 1986; judgment delivered 20 February 1987; noted 1987 A.T.P.R. (Digest) para. 46-022) where the same test of manifest preponderance of convenience was applied. Jenkinson J. noted that Pincus J. and French J. derived the criterion of manifest preponderance of convenience from the judgment of Bovill C.J. in

Church v. Barnett ((1871) L.R. 6 C.P. 116, at 117-8 which his Lordship

"The rule is that the venue shall not be' changed from the place where the plaintiff has thought fit to lay it, without the special order of a judge: and that order is to be made only where there is a manifest preponderance of convenience in trying the cause in the place to which the defendant seeks to remove the venue."

"In my opinion a single judge,should follow a rule of practice laid down by other single judges of the Court, save in exceptional circumstances. For that reason, and because I think the rule derived from Church v. Barnett, supra promotes expedition and discourages unprofitable disputation about finely balanced considerations, the evaluation of which is often very difficult, I will follow the decisions of Pincus J. and French J."

His Honour concluded his reasons for judgment with this

"On the evidence adduced and the submissions advanced on the hearing of this motion I would be inclined to think, but not without doubt, that the proceeding and the cross-claim may be tried in

Sydney more suitably for the interests of all the parties and the ends of justice than in Melbourne. But I certainly cannot find a manifest proponderance of convenience in trying those causes in Sydney. Accordingly the motion for change of the venue of the trial will be dismissed. There is no advantage in transferring the proceeding or the cross-claim to the New South Wales Registry if the trial is to be in Melbourne. That motion will also be dismissed."

The second respondent contends that the test of manifest preponderance of convenience is an inappropriate test for this Court to apply, that the correct test is which place is more appropriate for securing the ends of justice in the determination of the issues between the parties, and that the primary

Section 12 of the Federal Court of Australia Act 1976

"12. Sittings of the Court shall be held from time to time as required at the places at which the registries of the Court are established, but the Court may sit at any place in Australia or in a Territory."

The Governor-General is empowered by s. 34 to cause such registries of the Court to be established as he thinks fit, but so that at least one registry is established in each State, in

the Australian Capital Territory and in the Northern Territory.

"48, The Court or a Judge may, at any stage ofa proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes."

Paragraph (f) of sub-rule (2) of 0.10 r.1 of the Court's

"(£) ... 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."

Order 1 r. 4 provides that, in the Federal Court rules,

{a) where there has been no transfer means' the place at which the proceeding was commenced;

(b) where there has been a transfer means' the place to which the proceeding was transferred."

Order 30 is concerned with setting matters down for trial. O. 30 r. 6 provides, under the heading "Change of Venue",

"6(1) Subject to sub-rules (2) and (3), unless the place of trial has been fixed by the Court, the trial of the proceeding shall be at the proper place.

(2) The Court on the application of a party or of its own motion may direct that the trial of a Proceeding be fixed at a place other than the proper place.

(3) In this rule a reference to the trial of a proceeding shall include a reference to any interlocutory hearing in the proceeding."

Single judges of this Court have considered the proper principles to apply in deciding motions under s. 48 and the rules

In Jacobs v. Claudius Enterprises Pty. Limited (1985) ATPR 40-511 Spender J. heard a motion by the respondents' to

transfer the proceedings from the Queensland District Registry to

the Tasmanian District Registry. His Honour said at 46,078:

"In my view, on an application pursuant to 0. 10 r. 1(2)(£) it is proper to take into account the residence of the parties; the residence of the witnesses for the various parties; the expense and prejudice likely to the respective parties; the likelihood of delay being a significant consideration; whether there,is, in respect of the competing suggestions as to venue, any possibility of an interference with a fair trial of the hearing; and, ultimately, the balance of convenience having regard to all considerations."

In Hodder v. Australian Workers' Union (supra) Pincus J.

heard a motion for an order under 0. 30 r. 6 that the trial of the proceeding, which had been commenced in the Queensland

Registry of the Court, be fixed at Sydney. His Honour said at

"Having come to the conclusion that there is a slight balance of convenience, as a matter of probability, in favour of a Sydney hearing, the question is whether that is sufficient to justify a transfer to that city. In my opinion it is not. In Church v. Barnett (1871) LUCP 138; LR 6 CP at 116 the Court of Common Pleas laid down that the court will not deprive a plaintiff of the venue he has chosen unless there is a 'manifest Preponderance of convenience'. In my view, that is a test which is commonly applied; see for example Hobler v Francis [1911] QSR 17.

There is authority in New South Wales in favour of a requirement that the applicant show 'great inconvenience or injustice' as a condition of a change of venue: Lehtonen v Australian Iron and Steel Pty. Ltd. (1963) NSWR 323. I prefer the Church v Barnett test.

It must often occur that, where proceedings begun in this registry relate to the affairs of an organisation whose headquarters are in some place other than Brisbane, it will be said that it suits that organisation better to litigate on its home ground. I donot think the court should too lightly accede to that plea, depriving the applicant for substantive relief of his or her chosen venue. To do so would place a significant barrier in the path of people who, in such cases, wish to invoke the court's jurisdiction.

In this matter, however, it is enough to say that I am not satisfied that there 2s the necessary 'manifest preponderance of convenience' in favour of a Sydney hearing. I therefore refuse the application for a change of venue."

In Right Home Improvements (International) Pty. Limited

v. Imperial Alarm Screens (Aust) Pty. Limited (supra) the same

question arose again before Pincus J. who said at 47,199:

"The respondents assert, on evidence to that effect, that the balance of convenience favours a trial in Sydney. I propose to follow my own decision in Hodder v Australian Workers' Union ...

His Honour held that there was no manifest preponderance of convenience in favour of a trial in Sydney and that "the venue"

(1986) ATPR 40-698 Muirhead J. dismissed a motion for an order that the proceedings be transferred from the Western Australian Registry to the Victorian Registry of the Court. His Honour said

"I have considered the judgment of Spender J. in Jacobs v Claudius Enterprises pty: Ltd ... and the other authorities cited which relate to changes of venue, applications which raise similar issues for consideration.

I am not persuaded that the balance of convenience justifies the orders sought, nor amI_ persuaded that the first respondent's business will be jeopardised should the matter proceed to trial in Perth. I am concerned however that a transfer of the hearing to Melbourne may do injustice to the applicants who have a prima facie entitlement to proceed in Perth, as the proper place for trial." In T.V.W. Enterprises Limited v Magna Techtronics

(Aust.) Pty. Limited (supra) French J. dismissed a motion for an

order transferring a proceeding from the Western Australian District Registry to the New South Wales District Registry of the Court. The motion was brought under 0. 10 r. 1(2)(£) and 0. 30 r. 6 of the rules. His Honour found that the application fell to

be considered under 0. 30 r. 6(2). His Honour referred to the

decisions of Spender J. in Jacobs v Claudius Enterprises Pty.

Ltd. (supra) and of Pincus J. in Hodder v Australian Workers

"The powers conferred by these rules are not in terms governed by any constraint in favour of the place by which proceedings are instituted as the appropriate venue, although the use of the term "proper place' might be thought to suggest otherwise."

His Honour rejected the contention that "an unqualified

balance of convenience test" was appropriate and said

"In my opinion, however, considerations of expedition and public policy tend in favour of a requirement that more than a mere balance of convenience in favour of a venue should be

established in order to justify a change to that venue."

His Honour applied the test of manifest preponderance of

"In my opinion public interest requires that there should be demonstrated, as was required in Hodder v The Australian Workers Union (supra), a manifest preponderance of convenience in favour of the proposed change. To put it another way, the venue chosen should, when all the circumstances are examined, be seen to be obviously wrong."

In Cycles & Wheelman Pty. Limited v Beltech Corporation

Limited, a judgment of Gummow J., unreported, 11 March 1988, his Honour heard a motion to direct the transfer of a proceeding from the New South Wales Registry to the Western Australian Registry. His Honour observed that the statutory source of the power to

make such an order arose from s. 48 of the Federal Court Act,

together with 0.10 r.1(2)(£). 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 paragraph (b) of the definition of that term in 0.1 r.4, with the result that under 0.30 r.6 the trial of the proceedings would be at Perth unless

fixed elsewhere. As to the test to be applied, his Honour

"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 andin 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. At p. 196 of that report, the Full Court indicated that a discretionary power given by the Rules of Court should not itself become entangled in aweb of rules spun out of the discretionary decisions of the Court. The Full Court continued:

Decisions are not authorities upon the facts but upon principle; the facts must be regarded as unique to the particular case.

I do not read the decisions in the cases referred to this morning (some of which appear to have been concerned primarily with applications under 0.30 r.6(2), to change the place of trial to other than the 'proper place') as purporting to impose such a fetter. I refer to Hodder v The Australian Workers' Union (1984) 4 FCR 541, Jacobs v Claudius

Enterprises Pty. Ltd. [1985] ATPR 40-511 and TVW Enterprises Ltd. v Magna-Techtronics (Aust.) Pty. Ltd. (Federal Court 20 February 1987 unreported, T1987] ATPR (Digest) 46-022)."

The principles governing the circumstances in which appellate courts interfere in the exercise of the discretion of primary judges in respect of interlocutory orders are well

established. In Adam P. Brown Male Fashions Pty. Limited v.

Philip Morris Inc. (1981) 148 CLR 170 Gibbs CJ., Aickin, Wilson

"Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a _ substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed aisjunctively ... For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick ,Jordan in In re_ the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at p. 323:

',.. I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications froma Judge in Chambers to a Court of Appeal.'"

That passage has since been followed by Full Courts and single judges of this Court including Full Courts in Federal

Commissioner of Taxation v Nestle Australia Limited (1986) 69 ALR

445 at 451 and 452; Federal Commissioner of Taxation Vv

Hydrocarbon Products Pty. Limited (1987) 72 ALR 391 at 406-7; and

Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC

We reaffirm that the principles to be applied by this Court, when considering whether leave should be granted to appeal

from interlocutory orders, shall be as expressed in those cases.

It was contended by the second respondent that the decisions of single judges of this Court in the cases to which we have referred are in conflict as to the proper principles to be applied in deciding questions relating to change of "venue"; and that it is a matter of general public importance that a Pull

Court determine the proper principles to be applied.

Whether those decisions reflect different approaches or merely different degrees of emphasis is perhaps open to some question; but in our opinion, it is appropriate that a Full Court of this Court now determine the proper principles to be applied in considering questions arising under s. 48 of the Federal Court Act and 0.10 1.1(2)(£) and 0.30 1.6 of this Court's rules.

Accordingly, leave to appeal from the judgment of Jenkinson J.

The questions raised in this appeal must be considered in the context of the statutory provisions and rules of this Court mentioned earlier. The Federal Court 1s a court of wide jurisdiction throughout Australia whose judges may sit, whether as Full Courts or single judges, at any place in Australia. The Court has registries in each of the capital cities of the States

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

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

The balance of convenience will generally be a_ relevant consideration, but not necessarily determinative of each case. A Party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s. 48 or 0.10 r.1(2)(£) or 0.30 r.6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under 0.30 1.6 either on the application of a party or of its own motion. 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 one 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

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

Section 79 of the Judiciary Act 1903 provides that the laws of each State or Territory shall, subject to certain exceptions, be binding on all courts exercising federal

jurisdiction in that State or Territory in all cases to which

Difficult questions arise where the relevant law in more than one State or Territory of,Australia differs in its effect on the rights of the parties. The weight to be given to this factor in determining motions to continue a proceeding at a different place will be considerable where the differences between the laws of the two States or Territories are material and affect significantly the rights of the parties. In some cases, however, it will be difficult for the Court to assess at an early stage of a proceeding whether the differences between the two laws will affect the rights of the parties. The effect of differences between the applicable laws may depend, for

example, upon the exercise of discretions by the Court at' the

trial. It may be that the facts upon which any differences in law will operate will be known only in general terms, for example as pleaded, at the time the Court is asked to change the place at which the proceeding is to be heard. These are matters which the

Court must consider 1n each case when it becomes relevant to do

We have derived some assistance from judgments in analogous fields of law. The High Court, when exercising its discretion under s. 44 of the Judiciary Act to remit an action to one of the courts mentioned in the section, gives considerable

weight to the balance of convenience. In Pozniak v Smith (1982)

151 C.L.R. 38 the High Court considered whether an action for damages for personal injuries should be remitted to the Supreme Court of New South Wales or to the Supreme Court of Queensland, where the relevant law in the two States differed in several respects, including the statutory rate at which an award of damages as to lump sum compensation for future loss was to be

discounted. Gibbs C.J., Wilson and Brennan JJ. said at 47:

"We do not seek to minimise the relevance of the factor of convenience in a case where the applicable law in the competing jurisdictions is substantially similar. It is then of great importance. However, in our opinion, it cannot go beyond that, unless the circumstances are wholly exceptional. The balance of convenience cannot be allowed to lead to injustice. The only safe course, in a case where the relevant law in the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit to the State whose law has given rise to the cause of action."

Mason J. at 51 rejected the view that the Court, in determining which Court should hear the case, would give effect to the "so-called right of the plaintiff to select the place of hearing, subject only to the balance of convenience" in circumstances where there is a material difference in the laws of the States. His Honour noted that the concept of balance of convenience has the virtue of being an objective and independent criterion, but "is not designed to operate as a selector of the applicable law and it has no direct relevance to the choice of law". His Honour concluded, at 54, that the Court' should preserve the width of its discretion, "the object of which is to do justice between the parties" and noted that such approach would generally lead the Court to remit the matter in personal injury cases to the courts of the State where the injury occurred unless "with respect to the particular issue, some other State

has a more significant relationship with the occurrence and the

Section 44 of the Judiciary Act is a power vested in the

High Court to remit matters to other courts; whereas s. 48 of the Federal Court Act is directed to a different question, namely, whether a proceeding in this Court or part of a proceeding should be conducted or continued at a particular place. But the proceeding remains throughout in the Federal Court. Although the High Court's power under s. 44 of the Judiciary Act is analogous to the Federal Court's power under s. 48, the character of these powers is ultimately different. Hence decisions relating to s.

44 must be understood with these differences in mind.

Assistance is also derived from the cases concerning the principle of forum non conveniens (sometimes expressed as forum conveniens). The most recent authoritative exposition of those principles, as applied by the courts of the United Kingdom, 15s

Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 A.C.

In that case the House of Lords had to consider an appeal against the grant of leave to serve proceedings outside the jurisdiction. Their Lordships referred to the principles to be applied in applications for a stay of proceedings on the ground of forum non conveniens. Their Lordships held that the basic principle is that a stay of proceedings commenced in the United Kingdom will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action (per Lord Goff at 476; to similar effect per Lord Templeman at 464-465), being a forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice. The Court looks first to see what factors point in the direction of another forum and, if it concludes that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay (per Lord Goff at 477-478). If it concludes that there is some other available forum, which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless

Spiliada was considered by the Court of Appeal of New

South Wales in Oceanic Sun Line Special Shipping Co. Inc. v Fay

(1987) 8 N.S.W.L.R. 242, and subsequently by the High Court, the judgment of which was delivered on 30 June 1988. That case concerned an application for a stay of the respondent's action against the appellant in relation to injuries incurred while the applicant was a passenger on board a passenger ship sailing in

In a joint judgment, Wilson and Toohey JJ. referred to Spiliada as a definitive statement of present English law, namely, that the defendant may apply to a court to exercise its discretion to stay the proceedings under the principle of forum non conveniens. Their Honours expressly approved the reasoning of Lord Goff in Spiliada (at 14), pointing to the need for a court to deal justly with the problem of forum shopping. Their Honours concluded that the Spiliada approach was applicable, both to a court's jurisdiction to stay proceedings when there is a more appropriate forum in a foreign country, and to the

discretionary power of a court to permit service outside the

Brennan J. referred to the judgment of Gibbs J. in Cope Allman (Australia) Ltd. v Celermajer (1968) 11 F.L.R. 488 at 492-493 as stating the law as it applied in Australia prior to changes in English law following The Atlantic Star [1974] A.c. 436 and reviewed the English case law following that decision. His Honour characterised the English law as imparting a broad

discretion, offering little guidance to the judge on ascertaining

what is suitable "for the interests of all the parties and the ends of justice", and pointed to the difficulties ina court comparing different systems of law to determine which best served the interests of justice. His Honour expressly declined to apply Spiliada, and concluded that the principles to be applied in Australian law were those expressed in the judgment of Scott L.J.

in St. Pierre v. South American Stores (Gath & Chaves) Ltd.

Deane J. characterised the traditional approach to applications to stay or dismiss proceedings on inappropriate forum grounds as based on "the general principle empowering a court to dismiss or stay proceedings which are vexatious or oppressive or an abuse of process" (at 58), and noted the differences between the traditional approach and that established by Spiliada (at 61). His Honour concluded that the traditional approach should not be altered in favour of a judicial adoption

of the broader doctrine of forum non conveniens (at 66-67).

Gaudron J. pointed to difficulties associated with any doctrine "which confers upon a court a discretion to decline its regularly invoked jurisdiction and thereby decline to participate in the application of its own substantive law" (at 78). Her Honour indicated her preference for the inappropriate forum test as stated by Deane J. over that adopted in Spiliada, although her Honour further suggested that "the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities (including the extent of liability) of the parties" (at 79).

recognises at 23, the judgment in Oceanic Sun Line leaves' the

question of the principles to be applied in dealing with an application to stay proceedings in favour of a foreign

Although the cases relating to forum non conveniens are of some assistance by way of analogy, the problems considered in the High Court's decision do not arise in the present case. The principle of forum non conveniens is concerned with competing forums, and generally with different legal systems. This Court's

powers under s. 48 of the Federal Court Act and under the rules

of the Court exist within the context of a national court, as we mentioned earlier, although the exercise of the Court's powers may involve difficulties where there are differences in the applicable law as between one State or Territory in which the Court exercises its jurisdiction and another. There is no question of the Court's declining jurjsdiction in ordering that the further conduct of the proceedings be at one registry of the

We turn to Church v Barnett (supra) upon which reliance was placed by some single judges of this Court in the cases mentioned earlier and in the present case. In that case a cause of action arose in London and the venue was laid by the plaintiff in Middlesex. The defendants issued a summons to change the venue to London based upon an affidavit which indicated that the

question of fact to be tried would depend upon the authority of

certain agents to make the contract in suit and upon the custom of the trade as to payment of a deposit on such a contract. The Plaintiff and the defendants carried on business in the city of London where the contract, if any, was made. It was asserted that the defendants and their witnesses were engaged in extensive business in London, and that there would be substantial inconvenience in attending the trial of the matter if it took Place at Westminster (in Middlesex) instead of in London. It was said that it was the belief of the deponent, who was one of the defendants, that 1t was very important that the cause should be tried by a special jury of merchants familiar with the course of business in the city of London. The summons for change of venue was heard first by a Master and dismissed. An appeal to a Judge was unsuccessful. The defendant moved the Court of Common Pleas for a rule to change the venue to London. Bovill C.J. said at

"The rule is that the venue shall not be changed from the place where the plaintiff has thought fit to lay it, without the specjal order of a judge: and that order is to be made only where there is a manifest preponderance of convenience in trying the cause in the place to which the defendant seeks to remove the venue. In Durie v. Hopwood 7 C.B.(N.S.) at p. 837, Erle, C.J., says: 'We are always most anxious that causes" shall, 1£ possible, be tried where the matter in contest arose,' And Willes, J., refers to Helliwell v Hobson 3 C.B.(N.S.) 761 as an authority to shew that the Court will not deprive the plaintiff of the right to lay his venue where he pleases, unless there is a manifest preponderance of convenience in a trial at the place to which it is sought to change the venue."

His Lordship held that he was not satisfied that the

Master and the Judge had exercised a wrong discretion.

Willes J. came to the same conclusion as Bovill C.J.

"A plaintiff, therefore, has a right to lay his venue where he thinks proper. If he does so capriciously, a judge will change the venue to the place where the cause of action arose. But, where he has not exercised a capricious choice, the defendant, who seeks to deprive him of an undoubted right, must shew that there will be a practical preponderance of convenience in trying the cause in the place where the cause of action arose. It lies on him to make that out to the satisfaction of the judge. In the present case I cannot see that there would be a manifest preponderance of convenience in trying this cause at Guildhall rather than in Middlesex."

We note with interest that his Lordship appears to have equated the notions of "practical preponderance of convenience"

and "manifest preponderance of convenience". Montague Smith J. said at 119: "The question is whether there would be so manifest a preponderance of convenience in trying this cause in London that we ought to reverse what they [i.e. the Master and the Judge] have done."

Brett J. agreed with the other members of the Court. In the

Church v Barnett was concerned with a motion for change of venue in a civil case. Historically "venue" means the place from which a jury could be summoned, originally by the writ of

venire facias juratores, to try the issues in civil and criminal

trials. The writ was abolished in England by the Common Law Procedure Act 1852 (15 & 16 Vict. c. 76, s. 104). For an historical analysis of venues in civil actions see the judgment

of Lord Herschell L.C. in The British South Africa Company v. The

Companhia De Mocambigue [1893] A.c. 602 from 617 to 630.

Church v Barnett must be considered in the light of the

traditional doctrines surrounding applications for change of

venue then applicable in England. Although Church v Barnett and

the principles there expounded are of assistance in determining

questions arising under s. 48 of the Federal Court Act and the

rules of this Court with which this case is concerned, such assistance is by way of analogy only. These principles are not in our opinion determinative of the powers of this Court, an

Australian court with a jurisdiction throughout the nation.

It is also timely to mention that cross-vesting of State and Federal jurisdiction in Federal and State Courts, effected by the Federal and State Cross-Vesting legislation, came into force on 1 July 1988, a matter which exemplifies the differences between the character of this Court's powers in 1988 under s. 48

of the Federal Court Act and its rules, and the powers of the

The test of "manifest preponderance of convenience" 1s therefore not an appropriate test for this Court to apply in

considering motions under s. 48 of the Federal Court Act and the

Court's rules. The correct test is as stated by us earlier. We

It was submitted on behalf of the applicants that there are legitimate juridical advantages which would accrue to certain of them if the proceeding is heard in Melbourne rather than Sydney. It is clear, on the test stated by us, that the existence of a legitimate juridical advantage in the place in which the applicant commenced proceedings would be a matter to which a judge at first instance should give weight, and possibly considerable weight, in the exercise of his discretion. First it was said that the applicants would be entitled to claim and be awarded pre-judgment interest in the nature of damages if the proceeding 1s heard in Melbourne, but would not be so entitled if the trial takes place in Sydney. The argument was that' the applicant's causes of action arose before s. 51A of the Federal Court Act came into operation, namely, 22 November 1984, so that the applicants would have no entitlement to interest under that section. Section SIA entitles a successful applicant in proceedings before this Court to pre-judgment interest where the

cause of action arose after the commencement of the section, but

Reliance was placed upon the judgment of a Full Court of this Court (Sweeney and Woodward JJ., Neaves J. dissenting) in

Centrepoint Freeholds Pty. Limited v T.N. Lucas Pty. Limited

(1985) 6 F.C.R. 133 which held that s. 79 of the Judiciary Act (Cth) picked up the effect of s. 79A(1) of the Supreme Court Act

1958 (Vic) thus entitling the plaintiff to pre-judgment interest.

In Milner v Delita Pty. Limited (1985) 9 F.C.R. 299 Lockhart J. held that s. 79 did not operate to pick up and apply s. 94 of the

Supreme Court Act 1970 (NSW) in proceedings in this Court under

the Trade Practices Act 1974. It was held by Lockhart J. in

State Bank of New South Wales v Commonwealth Savings Bank of

Australia (1986) 67 A.L.R. 123 that s. 79 did not pick up s. 94 of the Supreme Court Act 1970 (NSW) to support an award of

interest in proceedings in this Court other than proceedings

Hence, it was argued that, if the applicants succeed in this case, they would be entitled to pre-judgment interest in

The second matter raised by the applicants was that they would be entitled to claim contribution pursuant to certain provisions of the Wrongs Act 1958 (vic) in circumstances where no

equivalent right 1s available under New South Wales legislation.

The pre-judgment interest question was not raised before Jenkinson J. The contribution point,,although mentioned before

his Honour, does not appear to have been at the forefront of the

In our opinion the relevance and weight to be given to these matters should be determined after the parties have considered whether further evidence touching them should be adduced, after full consideration has been given to them by the parties and further argument addressed to the Court. In _ these circumstances and in the light of the statement by Jenkinson J.

in the concluding passage of his judgment to which we referred

earlier that, although he could not find a manifest preponderance of convenience in trying the proceeding in Sydney, he "would be inclined to think, but not without doubt, that the proceeding and the cross-claim may be tried in Sydney more suitably for the interests of all the parties and the ends of justice than in Melbourne", we think the preferable course is to allow the appeal but remit the motion to Jenkinson J. or another single judge of

In our opinion leave to appeal should be granted from the judgment of Jenkinson J. given on 26 April 1988, the appeal should be allowed. The orders of Jenkinson J. should be set aside and the motion of which notice was filed on 8 March 1988 should be remitted to Jenkinson J. or another single judge of this Court for further hearing and determination. The costs of the motion for leave to appeal and of the appeal should be the second respondent's costs in the cause. Otherwise there should be no order as to the costs of any other party to the appeal. The costs of the motion of which notice was filed on 8 March 1988 including the hearing before Jenkinson J. and any further costs

At a glance

Court

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Before

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Source

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Judgment (204 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)

Cited By (1)