Jess v Scott

Federal Court of Australia|1988-03-11|Before: Gummow J

These proceedings were instituted by Application and Statement of Claim filed in the New South Wales District Registry of the Court on 12 February 1988. No Defence has as

yet been filed. By Notice of Motion filed 25 February 1988,

the respondent seeks an order "that this action be transferred to and the trial of the matter be at the District Registry of (sic) Western Australia".

I turn to that motion and to the applicable statutory and other provisions.

Section 12 of the Federal Court of Australia Act 1976

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.

Section 34 empowers the Governor-General 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. Section 48 of the Federal Court Act states:

The Court or a Judge may, at any stage of a 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.

Para. (£) of sub-rule (2) of 0.10 r.1 of the Federal Court Rules provides that on a directions hearing the Court may direct that:

at which there is a Registry other than the then proper place. Where 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.

0.1 r.4 provides that in the Rules, unless the contrary

where there has been no transfer means the place at which the proceeding was commenced;

where there has been a transfer means the place to which the proceeding was transferred.

Para. (a) of sub-rule (2) of r.1 of 0.10 of the Federal Court

Rules provides, inter alia, for the giving of directions as to

0.30 is concerned with setting matters down for trial.

Plainly, the present case is not yet ready for trial. 0.30 r.6

provides, under the heading "Change of Venue", as follows:

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

The Court on the application of a party or of its own motion may direct that the trial of a proceeding fixed at a place other than the proper place.

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

provisions is to locate the source of power (and attendant

discretion) to make the order sought by the respondent and

opposed by the applicants. Both sides direct attention to 0.30

r.6, but to do so is, in my view, to look at the matter with a distorted perspective. The motion is immediately directed to the transfer of the matter to the Western Australian Registry so that all further steps up to and including trial take place in Perth. Reliance is thus in truth placed primarily on s. 48 of the Federal Court Act, together with 0.10 r.1 (2) (£). What is sought is an order that the further conduct of the proceedings be at the Western Australian Registry, with the result that thenceforth Perth will be the "proper place" within para. (b) of the definition of that term. It would follow, from this transfer making Perth the "proper place", that, within the meaning 0.30 r.6 (1), the trial of the proceedings will be at Perth, unless the trial were to be fixed for elsewhere - see 0.30 r.6 (2).

In the ordinary course, as things now stand, the case would proceed at Sydney with the taking of interlocutory steps and Sydney would be the proper place for the trial. The question is whether there should be a departure from that ordinary course and, in that sense, it is for the applicant on the motion to satisfy the Court that the proceedings should be transferred, with the attendant consequences of that transfer. 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 he 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

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 a web 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, [1987] ATPR (Digest) 46-022).

I turn now to the present case. The dispute arises in the allegedly wrongful rejection by the respondent of the purported acceptance by the applicants of an offer for their shares in Portman Mining Limited. The takeover offer was made pursuant to the Companies (Acquisition of Shares) (South Australia) Code. Portman Mining Limited is incorporated in

that State. The respondent is incorporated in Western

Australia and has its principal place of business in Perth. The applicants are companies incorporated in New South Wales and each has its principal place of business in Sydney. The professional advisers to the parties are located in Perth and Sydney respectively.

The central complaint which attracts the jurisdiction

of this Court under ss.52 and 86 of the Trade Practices Act

1974 ("the TP Act") arises from events of 10 November 1987. It is alleged in the Statement of Claim that on that day a Mr. Calleia, a director of each of the applicants, spoke with one Barbara Boyle for the respondent and was told by her that certain documents had been received; it is then alleged that there was a representation by her (on behalf of the respondent) that the takeover offer had been duly accepted by the applicants and that the respondent later resiled from that representation by rejecting the purported acceptance. This lady and gentleman reside respectively in Perth and Sydney. At the present stage, it appears that they will be the principal witnesses. If the applicants succeed as to liability, it will be necessary to establish the measure of damages under s.82 of the TP Act. The particulars given with para. 17 of the Statement of Claim are deficient but from what I was told from the bar table this morning by the solicitor for the applicants, there are not likely to emerge under this head any significant considerations affecting the situation of the further conduct of the proceedings.

In the circumstances, the respondent has not satisfied me that an order should be made that the proceedings be

transferred to the Western Australian District Registry and

that the trial be in Perth. This 1s a case which, from the materials before me, was reasonably instituted by the applicants in Sydney and has sufficiently substantial connection with Sydney to withstand reliance by the respondents upon countervailing considerations in favour of further conduct of the proceedings being in Perth.

The Motion filed 25 February 1988 is dismissed with costs and the proceedings are stood over for further

I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Gummow.

(the Respondent on the motion) Messrs. Mallesons Stephen Jaques.

Counsel for the Respondent: Mr. A. Morrison instructed

(the Applicant on the motion) by Messrs. Dwyer & Thomas. Date of hearing: 11 March 1988. Date of judgment: ll March 1988.

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties

Cases Cited (2)