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[1988] FCA 359
procedural. The motion to fix the trial of the proceeding and cross-claim in Sydney was dismissed. The motion to transfer the proceeding and cross-claim to the New South Wales Registry was also dismissed.
The respondent accounting firm wanted the case tried in Sydney because many events, witnesses, advisers and its records were there. Melbourne also had substantial connections, including the first applicant, applicant-held records, witnesses and the applicants' advisers. The judge applied a demanding test: Sydney had to have a manifest preponderance of convenience. Although he thought Sydney might be more suitable, he was not satisfied that the difference met that threshold. The trial venue therefore remained Melbourne, and there was no reason to transfer the matter to the New South Wales Registry.
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Jenkinson J dealt with an interlocutory motion about where a substantial Federal Court proceeding should be tried. The proceeding had been commenced in the Victorian Registry. Peat Marwick Mitchell & Co, the second respondent, asked the Court to fix the trial in Sydney and transfer the proceeding and cross-claim to the New South Wales Registry. The judgment identifies the applications as being made under s 48 of the Federal Court of Australia Act 1977 and specified Federal Court Rules. The OCR in the supplied text is imperfect, but the stated outcome and statutory reference are legible.
No linked legislation citations have been extracted yet.
The underlying dispute concerned the acquisition by National Mutual Holdings Pty Ltd of all issued shares in ACC Holdings Limited. ACC Holdings owned all issued shares in the other applicant companies. The applicants alleged that the acquisition had been induced by erroneous statements in the financial records of those other companies. They alleged responsibility on the part of the vendor, The Sentry Corporation, and the auditing firm, Peat Marwick Mitchell & Co. The judgment concerned only the place of trial and registry, not the merits of those allegations.
The competing geographical connections were substantial. The first applicant's principal place of business was Melbourne, while the other applicants' principal places of business were Sydney. The Sentry Corporation was an American corporation with no current business in Australia. Two natural-person cross-respondents lived in Sydney.
The judge also compared where the relevant people and materials were located. Most activities giving rise to the dispute took place in Sydney and involved Sydney residents. The accounting firm's witnesses and legal and accountancy advisers were nearly all in Sydney, as were the relevant records in its possession. On the applicants' side, most relevant records in their possession were in Melbourne, many of their witnesses lived there, and their legal and accountancy advisers were based there. The trial was expected to last several weeks and preparation was expected to take considerable time and involve collaborative work by many people.
After considering those connections, Jenkinson J dismissed both requests. He was inclined, though not without doubt, to think that Sydney might be a more suitable trial location. But he could not find the degree of advantage required by the rule he applied. Since he did not move the trial to Sydney, he saw no advantage in moving the case to the New South Wales Registry.
The central question was not whether Sydney had a connection to the dispute, nor simply whether more convenience factors favoured Sydney than Melbourne. It was what threshold had to be met before the Court would displace the applicants' chosen venue.
The respondent firm's counsel advocated a criterion framed in terms of whether Sydney would be more suitable for the interests of all parties and the ends of justice. Counsel linked that approach to cases concerning forum non conveniens, a New South Wales venue decision, and a High Court remittal decision. Jenkinson J recorded that submission and the authorities relied on, including Spiliada Maritime Corporation v Cansulex Ltd, Hansen v Border Morning Mail Pty Ltd and Pozniak v Smith.
The judge did not treat those lines of authority as controlling the application. He accepted the approach taken in earlier single-judge Federal Court decisions, including Hodder v The Australian Workers' Union, Right Home Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd, and TVW Enterprises Ltd v Magna Techtronics (Aust) Pty Ltd. Those decisions adopted the rule stated in Church v Barnett: the venue selected by the plaintiff should not be changed without a manifest preponderance of convenience in favour of the proposed venue.
Jenkinson J gave two reasons for adhering to that rule. First, he considered that one single judge should ordinarily follow a rule of practice laid down by other single judges of the Court, unless exceptional circumstances existed. Second, he considered the rule useful in practice because it promoted expedition and discouraged unproductive disputes about finely balanced convenience factors. He noted that circumstances may change as a case moves towards trial. A witness once thought important may cease to be so, or a new witness may emerge. If an ordinary balance-of-convenience test governed, the balance might shift and invite successive venue applications.
The decision therefore rests on a threshold, not on a finding that Melbourne was necessarily the most convenient location. The judge acknowledged that Sydney might be more suitable, but that was not enough. The evidence had to show a manifest preponderance in favour of Sydney. The substantial Melbourne connections meant that he could not make that finding. The difference between “perhaps more suitable” and “manifest preponderance” explains the result.
The judgment identifies a disagreement about the proper test for a Federal Court venue application. The respondent firm urged a general suitability or balance approach, drawing analogies with other procedural contexts. The judge instead followed the more demanding venue-change rule already adopted by other single judges of the Federal Court.
The decision's account of the prior position is specific to the issue before it. It explains that Pincus J and French J had adopted the Church v Barnett formulation in earlier Federal Court matters. Jenkinson J considered himself bound as a matter of judicial practice to follow that line, absent exceptional circumstances. He also endorsed its practical rationale: avoiding costly and repetitive arguments about finely balanced convenience considerations.
The judgment does not establish a comprehensive rule for every form of forum dispute. Jenkinson J expressly observed that applications under s 44 of the Judiciary Act 1903, and matters involving foreign forums or service on persons outside a State's territory, may raise different questions from an application under s 48 of the Federal Court of Australia Act. He said that reasoning in those other types of cases did not constrain him in deciding this motion.
Accordingly, the decision should be understood within the procedural setting addressed by the judge: a change of trial venue within the Federal Court. The text does not state how later courts treated the decision or whether the rule was subsequently modified. It would be unsafe, from this judgment alone, to describe its present status or make claims about later doctrinal developments.
The judgment is supplied without numbered paragraphs. For that reason, paragraph references cannot reliably be supplied. The following passages are quoted by their wording in the judgment.
The Church v Barnett formulation, as reproduced in the reasons, says that a venue should not be changed unless there is “a manifest preponderance of convenience” in favour of the alternative. In plain English, the party seeking a move had to show a clear and substantial practical advantage, not merely that the alternative location had some advantages or might be marginally better.
The reasons also reproduce French J's description that the chosen venue should be “seen to be obviously wrong” when all the circumstances are examined. That wording helps explain the degree of advantage contemplated by the test. It does not mean that the judge found Melbourne objectively ideal. Rather, the existing choice was not to be displaced without a sufficiently clear reason.
Jenkinson J's direct conclusion was: “I certainly cannot find a manifest preponderance of convenience in trying those causes in Sydney.” In plain English, the Sydney connections did not outweigh the Melbourne connections decisively enough to satisfy the legal test.
The judge also said he was “inclined to think, but not without doubt” that the case might be tried in Sydney more suitably for the interests of the parties and the ends of justice. That qualification is important. It shows that the Court could recognise possible overall suitability for Sydney while still refusing a venue change under a stricter threshold.
The judgment is relevant where a party seeks to move a Federal Court trial away from the venue selected when proceedings were commenced, and where the dispute has substantial practical links to more than one location. The kinds of connections expressly weighed here included where events occurred, where parties and witnesses lived, where documents were held, where professional advisers were located, and where trial preparation was taking place.
The decision is especially informative when the convenience factors point in different directions. In this case, Sydney had the location of most activities giving rise to the dispute, many of the firm's witnesses and advisers, and the firm's relevant records. Melbourne had the first applicant's principal place of business, many applicant witnesses, applicant-held records, and the applicants' advisers. The judgment shows that the existence of a plausible alternative venue does not itself satisfy the threshold.
The trial's anticipated duration and the scale of preparation were also part of the factual setting. The judge noted a trial expected to occupy several weeks and preparation involving many people. The reasons do not, however, set out a separate rule about long trials or specify that such circumstances independently determine venue.
The decision does not resolve what test applies to every kind of transfer, foreign-forum dispute, or service-out application. Jenkinson J expressly cautioned that other procedural settings may pose different questions. Its reasoning should therefore be read in the context of the Federal Court venue application before him.
The supplied judgment does not discuss any later treatment of National Mutual Holdings v Sentry Corporation. It is a decision dated 26 April 1988, and the text gives no subsequent cases applying, distinguishing, affirming or questioning it. No later-treatment history can be established from this source alone.
What the judgment does show is the court's own treatment of earlier authority. Jenkinson J followed the approach adopted in Hodder, Right Home Improvements and TVW Enterprises. He adopted the Church v Barnett rule as the applicable practice for the motion. He discussed Spiliada, Hansen and Pozniak because the respondent's counsel relied on them, but considered that other procedural contexts might involve different questions. That is the extent of the precedent relationships that can be drawn from the supplied text.
The judgment does not explain in detail how each convenience factor should be weighed in every case. It lists the competing locations of events, witnesses, advisers and records, but does not assign numerical or categorical weight to any one factor. The conclusion is tied to the evidence and submissions presented on this motion.
The judge also did not specify what would count as “exceptional circumstances” permitting a single judge to depart from a rule of practice laid down by other single judges. He said that absent such circumstances he should follow the earlier decisions, but the judgment does not define that exception.
Another question left open is how the test applies when the competing factors are not evenly distributed, or when a proposed venue has a particularly strong connection that is not present in the case considered. The judgment makes clear that finely balanced convenience was insufficient here, but does not formulate a detailed framework for future comparisons.
Finally, the reasons do not determine the substantive allegations about the financial records, the share acquisition, or responsibility for the alleged errors. Nor do they give a broader account of the legal relationship between the Federal Court venue test and forum non conveniens principles beyond the judge's observation that distinct procedural contexts may raise different questions.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
High Court and Federal Judiciary - Tedesral | Practice and pro-sdure - Change cf ven. - af wonvenrence.
Judiciary Act 1503 - 3.44 Pederal Gsurt Order 10 Puls lifts,
Spiliada Maritime Corporation v. Canmsulex Led. 7 Hansen v. Border Morning Mail Pty. Ltda. 11367, 9 N.S.8. Pozniak vw. Smith (1982) 151 C.L.R. 38
Hodder v. The Australian Workers Union 1.1384, 4 F.C.R. S41
Right Home Improvements International Ply. Ltd. v. Tmperial Alarin Screens vAust.) Fey. Ltd. (1354) A.T.P.R. 40-641
TVA Enterprises Ltd. ov. Magna Techtronies 'Aust.) Fty. Etd. \unrep. WAG62 of 1986 Judgment 20 Feb. 1987; noted 1387
A.T.P.R. (Digest) para. 46-022} Church v. Barnett (1871) L.R. 6 C.F. lle
NATIONAL MUTUAL HOLDINGS Pry. LTD., ACC HOLDINGS LIMITED, ACC FINANCIAL MANAGEMENT LIMITED, ACC GENERAL INSURANCE LIMITED AND AUSTRALTAN CASUALTY COMPANY LIMITED v. THE SENTRY CORPORATION AND
"oa N Melbourne Jot Cree eS 26 April, 1588 of 'ene Ve ¢ > lef 7 @ Arn 1938
BETWEEN: NATIONAL MUTUAL HOLDINGS PTY. LTD. ACC HOLDINGS LIMITED ACC FINANCIAL MANAGEMENT LIMITED ACC GENERAL INSURANCE LIMITED and AUSTRALIAN CASUALTY COMPANY LIMITED Applicants AND: THE SENTRY CORPORATION and PEAT MARWICK MITCHELL & CO (A FIRM) Respondents AND BETWEEN: PEAT MARWICK MITCHELL & CO_(A FIRM) Cross-Claimant AND: THE SENTRY CORPORATION
First CrossRespondent
ANDREW THOMAS GREGORY
Second Cross-Respondent
WILLIAM CLARKE 0' KANE
Third Cross-Respondent
ACC HOLDINGS LIMITED
Fourth Cross-Respondent
CORAM: Jenkinson J. PLACE: Melbourne DATE: 26 April, 1988
The first applicant acquired from the first respondent all the issued shares in the second applicant, 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 tiunduced by erroneocus statements in the financial records of the other applicants, for which errors the vendor of the shares and the second respondent, a firm of
accountants which audited those records, are responsible. Claims
The principal place of business of the first applicant
is in Melbourne. The principal place of the other applicants' businesses is in Sydney. The first respondent is an American corporation with no current business in this country. The two
natural persons who are crass-respondents live in Sydney. The
respondent firm of accountants moves the Court pursuant to 5.48 of the Federal Court of Australia Act 1977 and Order 30 Rule 6(2) for an order that the trial of the proceeding and of the cross-claim be fixed at Sydney and, pursuant to that section and Order 10 Rule 2(f), that the proceeding and cross-claim he transferred to the New South Wales Registry from the Victorian Registry, where the
The -Erial 15 expected to occupy a number of weeks, and preparation for trial i185 expected to occupy much time and to involve the collaborative activities of many persons. 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 that respondent's possession are in Sydney. On the other hand most of the relevant records which are in the possession of the applicants are in Melbourne, many of the witnesses to be called by the applicants reside in Melbourne, and all the many legal and accountancy advisers of the applicant, most of whom have been
engaged in the preparation of the case for more than a year,
Counsel for the respondent firm submitted that wnat had to be shown by his clients was that the proceeding may be tried in Sydney more suitably for the interests of all the parties and the ends of justice. That statement of the criterion was said to accord with the principles to be found in cases concerning stay of
proceedings on the ground of forum non conveniens (discussed in
Spiliada Maritime Corporation v. Cansulex Ltd. C1987] A.C. 460)
and concerning change of venue in New South Wales (such as Hansen vw. Border Morning Mail Pty. Ltd. (1987) 93 N.S.W.L.R. 44) and concerning cho1ce of the Court to which a matter should be remitted by the High Court under 5.44 of the Judiciary Act 195303 (such as Pozniak v. Smith (1982) 151 C.L.R. 38). That statement and those principles were at variance, it was submitted, with the statement of the appropriate criterion, by which to determine applications to this Court for change of the trial venue, adopted
by Pincus J. in Hodder wv. The Australian Workers' Union (1984) 4
F.C.R. 541 and in Right Home Improvements International Pty. Ltd. v. Imperial Alarm Screens (Aust.) Pty. Ltd. (1936) A.T.P.R. para.
40-641, and by French J. ain TVW Enterprises Ltd. 7. Magna
Techtroniecs (Aust.) Pty. Ltd. (unreported; WAG62 of 1986; judgment 20 February 1987; noted (1987) A.T.P.R. (Digest) para. 46-027). Those two learned judges adopted the criterion stated by Bovill
C.d. for the Court sof Common Pleas in Church v7. Barnett (1371)
"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 1s a manifest preponderance of convenience in trying the cause in the place to which the defendant seeks to remove the venue."
The best justification of a rule of practice may be that
in time it becomes well known. French J. has stated other grounds
"At first blush an unqualified balance of convenience test has the advantage of logic and simplicity in the determination of change of venue applications.
There 15 no obvious reason for giving the applicant's choice of venue special weight.
An arbitrary or capricious choice would count for nothing against the respondent in any event.
In my opinion however considérations expedition and public policy tend in favour a requirement that more than a mera balance convenience in favour of a venue should established in order to justify a change that venue.
In many cases such as the present convenience may be finely balanced.
In the progress of a case ta trial, circumstances may change. A person formerly thought to be a vital witness may no longer be so. A new witness may emerge and with his emergence the balance of convenience may change. Successive changes of venue might Le justified if that test were to he applied.
In my opinion public interest requires that Chere should be demonstrated, as was requirad in Hodder v The Australian Worxers Union (supra), a manifest preponderance of convenience in Favour of the sed change. To put it another way the venue chosen should, when all the circumstances are examined, be
The test does in effect confer upon the applicant's initial choice a certain advantage in the equation. That advantage springs not From any particular sanctity attaching to his choice but rather from the need to fully; justify any transfer."
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. The
questions which arise in cases under s.44 of the Judiciary Act
1903 and in cases of applications concerning the fora of foreign States and service om persons outside the territory of the State are not uncommonly quite different from those which may arise under 3.438 of the Federal Court of Australia Act 1977, and I do not think myself constrained by reasoning in cases of the former
On the evidence adduced and the submissions advanced on the hearing of this motion I would be inclined to think, bu& not without doubt, that the proceeding and the cross-claim may be tried in Sydney more suitably for the interests of all the par and the ends of justice than in Melbourne. But I certainly cannot find a manifest preponderance of convenience in trying those causes in Sydney. Accordingly the motion for change of the venue of the trial will be dismissed. There 15 mo 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
I certify that this and the preceding pages are aA true copy the Reasons for Judgment herein 9 the Honourable Mr. Justic
Mr. A.C. Archibald Q.C., Mr. P.R. Hayes and Mr. C.M. Scerri
The motion to fix the trial of the proceeding and cross-claim in Sydney was dismissed. The motion to transfer the proceeding and cross-claim to the New South Wales Registry was also dismissed.