Lifeplan Australia Friendly Society Ltd v Woff

ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED ACN 087 648 842

JUDGE: BESANKO J DATE: 6 september 2013 PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by the fourth respondent for an order that the proceeding be transferred from the South Australian Registry to the Victorian Registry of the Federal Court of Australia. The fourth respondent relies on s 48(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") and r 2.02 of the Federal Court Rules 2011 (Cth). Those provisions are in the following terms: 48 Change of venue (1) 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. 2.02 Transfer of proceeding to another place A party may apply at the proper place for an order that the proceeding be transferred to another place. Note 1: Proper place is defined in the Dictionary. Note 2: See section 48 of the Act. 2 The definition of "proper place" in the Rules is as follows: … for a proceeding, means: (a) the place where the proceeding is started; or (b) if the proceeding is transferred to another place - the other place, from the date of transfer. (See r 1.51 and Schedule 1.) 3 The leading authority with respect to the scope and operation of s 48 of the Act is National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 19 FCR 155 ("Sentry"). 4 The proceeding was commenced on 14 May 2012. At that time, there were three respondents: Mr Noel Woff, Mr Richard Corby and Funeral Planning Australia Pty Ltd ("Funeral Planning"). Funeral Planning was wound up by order of the Supreme Court of Victoria on 12 June 2013 and the applicants have made an application under s 471B of the Corporations Act 2001 (Cth) for leave to proceed against it. That application has not yet been determined. Funeral Planning played no part in this application. 5 The fourth respondent made its application for an order for transfer under s 48 and r 2.02 on 11 July 2013. It was joined as a respondent to the proceeding by an order made on 7 June 2013. The nature of the applicants' claims against the respondents and the circumstances surrounding the joinder of the fourth respondent to the proceeding are outlined in my reasons in Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 613 at [14] - [24]. 6 The fourth respondent is represented by TurksLegal, a firm of lawyers practising in Melbourne, and its application was supported by an affidavit from a senior associate of that firm. The first and second respondents supported the fourth respondent's application. The significance of their support must be considered in a context where they, despite being parties to the application since 14 May 2012, made no application for an order that the proceeding be transferred. 7 In support of its application the fourth respondent points to a number of matters. It points to the fact that each of the four respondents, including the liquidator in the case of the third respondent, are based in Melbourne. At the same time, it appears that the fourth respondent (and the third respondent) operates a national business. The fourth respondent points to the fact that the first applicant's registered office from 2 November 2009 has been in Melbourne. It was in Adelaide prior to that date. The fourth respondent accepts that the first applicant's principal place of business is in Adelaide. It points to the fact that in terms of registered office, the position in relation to the second applicant is the same as it is in the case of the first applicant whereas it claims that the second applicant's principal place of business is in Melbourne. 8 I am satisfied based on the evidence adduced by the applicants that the first and second applicants conduct their business nationally and that the majority of the first applicant's staff and records are in South Australia. That is now also the case with the second applicant. When employed by the first applicant, the first and second respondents reported to an executive in Adelaide and the boards of each of the applicants held the majority of their meetings in the past 12 years in Adelaide. The "centre of expertise" of the applicants' business is in Adelaide 9 In terms of witnesses, the fourth respondent submits that it is too early to say with any certainty which witnesses will be called at trial. The fourth respondent submits that at this stage the applicants have identified one witness based in Adelaide, whilst the respondents have identified three witnesses based in Melbourne. 10 The applicants do not agree with the fourth respondent's assertion about witnesses. They identify the location of witnesses they propose to call and the first and second respondents propose to call. I do not need to set out the details because it is not decisive of the present application. 11 The fourth respondent submits that considerable weight should be placed on the location of the legal representatives of the respective parties. In the case of the fourth respondent, its solicitors and senior and junior counsel are based in Melbourne, and in the case of the first and second respondents, their solicitors are based in Melbourne. In the case of the applicants, the partner of the firm representing the applicants and their senior counsel are based in Melbourne, while the senior associate and junior counsel representing the applicants are based in Adelaide. 12 The fourth respondent submits that the conduct of the first and second respondents which is complained of in the proceeding occurred in Melbourne because they were based in Melbourne in 2010 and 2011. The applicants submit that the business was being carried on in Adelaide and that as their claim involves both employment and post employment conduct, the conduct complained of occurred partly in Adelaide and partly in Melbourne. 13 I do not think that it can be said that the applicants' choice of venue was capricious. It was certainly not capricious on 14 May 2012, and I do not think that it would be characterised as capricious if it was assumed that the proceeding was commenced on the date upon which the order joining the fourth respondent was made (i.e., 7 June 2013). In those circumstances, it is appropriate to consider whether there is sound reason to direct that the proceeding be conducted or continued elsewhere. I place minimal weight on the location of the legal representatives of the parties (Baxendale's Vineyard Pty Ltd and Others v Geographical Indications Committee and Another (2007) 156 FCR 444 at 449 [29] per Mansfield J). The location of events in this case is not of particular significance and there is no suggestion that there is a particular Victorian law to be applied. 14 On one view, the balance of convenience in terms of the location of potential witnesses may slightly favour a Victorian venue. Whilst that is a relevant consideration, Sentry makes it clear that it is not necessarily determinative of the case. As against that consideration, the proceeding is substantially advanced and I have had to consider a number of matters during the course of the proceeding. The proceeding had in fact been allocated a trial date in Adelaide, although it is true that that was before the fourth respondent was joined as a party. Nevertheless, the discretion under s 48 is to be exercised flexibly having regard to the circumstances of the particular case. In my opinion, in the particular circumstances of this case the answer to the question posed in Sentry (at 162) - "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" - is the South Australian District Registry. 15 The fourth respondent's interlocutory application dated 11 July 2013 will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.