REASONS FOR JUDGMENT
1 By motion on notice dated 14 December 2010 the respondent, pursuant to O 30 r 6(2) of the Federal Court Rules ('the Rules'), seeks orders that these proceedings and, in consequence, the collateral proceedings in the Administrative Appeals Tribunal, which have been set down for a four week hearing in Sydney commencing on 21 March 2011, be heard in Melbourne; alternatively, that the evidence of witnesses who reside in Victoria be heard in Melbourne. The parties were content that I deal with the respondent's motion on the papers.
2 Having considered the respondent's written submissions in support of the motion, those of the applicant against the motion as well as certain other matters referred to below, the application must be dismissed because I am not satisfied 'that there is sound reason to direct that the proceeding be conducted' in Melbourne, or that the evidence of Victorian resident witnesses be heard in Melbourne: National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162.
3 The applicant commenced the proceedings in the New South Wales registry of the Court as it was entitled to do (O 52B r 4(3)(c)(iii) of the Rules) on 16 November 2009. The respondent complained that he is ignorant of why the applicant chose to commence proceedings in New South Wales and, in the absence of any explanation, the Court should conclude that the applicant chose to commence in the New South Wales registry because it was convenient to its external lawyers (most of whom have been based in Sydney) regardless of the numerous links the proceedings have to Melbourne (see [6] below) and the residence of the applicant's witnesses (see [7] below).
4 The applicant could have chosen to commence the proceedings in New South Wales for any number of reasons. It is, after all, a major bank carrying on business as such throughout Australia and a significant part of its business is in New South Wales. In the absence of an explanation as to why it chose to commence the proceedings in New South Wales, rather than in Victoria, I am not prepared to conclude that it did so because it was convenient to its external lawyers.
5 As the Full Court said in Sentry Corp at 162, the starting point for the Court in considering applications such as these 'is that the proceeding has been commenced at a particular place. Why should it be changed?' Even if the applicant chose to commence the proceedings in the New South Wales registry because it was convenient to its external lawyers, the applicant does not suggest, nor could he, that that is a capricious choice (see Sentry Corp at 162), although he does suggest that the Court should have little or no regard to that choice in determining where the trial is to be conducted. On the facts before me, I do not agree, particularly as the proceedings have been on foot for over 14 months, most of the interlocutory steps have already been taken and the hearing is a little over a month away. As the Full Court said in Sentry Corp at 162:
'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.'
6 In support of its motion the respondent pointed to the following links with Melbourne, and the lack of a link with New South Wales:
(1) the applicant's head office is and was at all relevant times located in Melbourne;
(2) the transaction the subject of the proceedings was developed and executed primarily in Melbourne. To the extent that it was developed and executed elsewhere, it was done so overseas and not in Sydney;
(3) board approval for the transaction was given at a board meeting held in Melbourne and a subsequent board committee meeting held in Melbourne;
(4) the applicant's notices of objection were issued out of its Melbourne office;
(5) the principal officers and employees of the applicant involved in and responsible for the transaction were, at the relevant times, located in Melbourne;
(6) the applicant's legal advisers for the transaction were located in Melbourne;
(7) the great majority of the applicant's witnesses are located in Victoria, and this must have been apparent to the applicant when it commenced proceedings. This point is elaborated further in [7] below;
(8) those officers and employees of the applicant who remain involved in and responsible for the transaction are, to the best of the respondent's knowledge, located in Melbourne;
(9) prior to the commencement of proceedings, three mediations were held. Despite being conducted by a Sydney-based mediator, all three were held in Melbourne;
(10) prior to the commencement of proceedings, four of the people who have now given affidavits in support of the applicant's case were examined by the respondent pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth). These examinations were all conducted in Melbourne; and
(11) there is no geographic link between any matter in issue in this proceeding and New South Wales.
7 The respondent submitted that, in the present case, it is the residence of witnesses that leads to the conclusion that the balance of convenience favours most or all of the trial being conducted in Melbourne. In an affidavit supporting the motion, the senior executive lawyer in the office of the Australian Government Solicitor with the conduct and carriage of this matter on behalf of the respondent set out tables noting the various witnesses who are to give evidence on behalf of the applicant. There are 41 witnesses. Twenty-six (or twenty-five) of them are located in Melbourne; five (or six) in Sydney. The balance are overseas, save for one in Tasmania and one in regional Victoria. The respondent's best estimate of the time needed for cross-examination of each witness is that it will reflect the length of that witness's affidavit. One table calculates that 82% of the witness evidence (based on the number of paragraphs in their affidavits) is based in Melbourne, with only 6% in Sydney. If Mr Allerton is in Sydney, then 69% of the witness evidence (by number of paragraphs) is based in Melbourne, and 18% in Sydney. Of the Melbourne witnesses, only five (9% of the evidence, by number of paragraphs) are current employees of the applicant and about whom it might be said that it is the convenience of the applicant that is relevant.
8 A solicitor in the law firm acting for the applicant deposed that none of the Victorian-based witnesses has expressed any concerns to him about travelling to Sydney to give evidence. In response, the respondent submitted that in the absence of evidence that these witnesses were asked about their attitude to travelling to Sydney, or that they were told the proceedings could be heard in Melbourne, this evidence has no weight. I do not agree. The fact that most of these witnesses are not employees of the applicant and yet are prepared to give evidence would indicate to me that they have no concerns about travelling to Sydney.
9 The respondent has already indicated to the applicant that he intends cross-examining each of the first 25 witnesses in the Australian witnesses table, and may call some of the remaining six, in particular, Messrs MacFarlane and Park, whose position is not materially different from the other former directors of the applicant. It is likely that at least six of the overseas witnesses will be cross-examined, most likely by video-link.
10 In his affidavit, the solicitor in the law firm acting for the applicant calculated the accommodation expenses for the Victorian-based witnesses based on an assumption that each will be required to spend one night in Sydney. The respondent replied that this assumption is, with respect, wholly unrealistic. Many of the more substantial Melbourne witnesses are likely to be cross-examined and re-examined across more than one day. Even those who are required for only one day are likely to spend more than one night in Sydney because it is not possible to say precisely when a witness will be required. In any event, the disruption and inconvenience to a large number of Victorian witnesses, some of whom are retired and thus likely to be elderly, of having to travel and stay interstate to give evidence is not so easily quantified.
11 In addition, if the respondent is unsuccessful and the usual costs order is made against him, it is likely that he will have to pay the costs of having a large number of the applicant's witnesses travel to and stay in Sydney.
12 Leaving aside witness expenses, the solicitor in the law firm acting for the applicant deposed that the applicant will incur additional expenses if the trial is heard in Melbourne. In response, the respondent said he will incur additional expenses if the trial is heard in Sydney. Ultimately, the respondent conceded that the cost of flying the respondent's lawyers to Sydney and of providing office space and hotel accommodation for them is not likely to be significantly different from the applicant's costs if the trial were to be held in Melbourne. In my view, this consideration is neutral.
13 On the other hand, the respondent submitted that the cost of moving lawyers, witnesses and documents are entirely of the applicant's making. He submitted that, in substance, these are Melbourne proceedings; the applicant is entitled to brief Sydney lawyers to act for it, but it cannot be heard to complain if that decision leads to it incurring additional costs. Whether this is right or not, it is hardly a consideration to which any real weight should be attached in determining the respondent's motion.