Nufarm Australia Ltd v Dow Agrosciences Australia Ltd

REASONS FOR JUDGMENT 1 The proceeding before me for directions this morning is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is limited to a question of law, and the notice of appeal does raise questions of law. 2 The proceeding in the Administrative Appeals Tribunal ("the Tribunal") was instituted by the first respondent to the appeal, Dow Agrosciences Australia Ltd ("Dow Agrosciences") against the second respondent to the appeal, the Chief Executive Officer of Customs ("the CEO Customs"). The applicant in this appeal, Nufarm Australia Ltd ("Nufarm") applied to the Tribunal to be added as a party. Counsel for Nufarm says that Nufarm was in fact the chief contradicting party in the Tribunal, the party that called all of the evidence against Dow Agrosciences. 3 Order 53 r 2(2) of the Federal Court Rules requires that a notice of appeal in an appeal from the Tribunal must be filed in an appropriate registry. The phrase "appropriate registry" is defined in O 53 r 1 to mean a district registry in the State or Territory in which the Tribunal heard the matter. It follows that the applicant was required to file the notice of appeal in the New South Wales District Registry, because the Tribunal heard the matter in New South Wales. Order 53 r 2(3) provides that, before or after the filing of a notice of appeal, the court or a judge may order that a nominated registry is the appropriate registry for that appeal. Subrule (3) therefore gives the Court a discretion to depart from the requirement that the notice of appeal be filed in the district registry in the State or Territory in which the Tribunal heard its appeal. That discretion is not accompanied by any specification of relevant factors. 4 In the present case, it is said that the original solicitor for Nufarm has undergone surgery and is no longer in a position to represent Nufarm. As a consequence, Nufarm has engaged other solicitors. It has chosen to engage solicitors whose principal office is in Melbourne. Those solicitors do have an office in Sydney. There is material suggesting that the bulk of the witnesses who were called in the Tribunal are located in Sydney. The location of witnesses is irrelevant in relation to an appeal on a question of law. 5 Counsel for Dow Agrosciences opposes the nomination of an appropriate registry other than the New South Wales District Registry. The solicitor for the CEO Customs supports the application, but only on the basis that the file is now in the charge of a solicitor in Melbourne who proposes to brief Melbourne counsel. The solicitor for the CEO Customs is the Australian Government Solicitor, which has not yet filed a notice of appearance. It appears to me to be equally convenient for the CEO Customs to file a notice of appearance in Sydney and, if it wishes to do so, to brief New South Wales counsel to appear in the matter, and not Melbourne counsel. 6 The only basis on which Nufarm therefore puts its application is reduced inconvenience and reduced costs on the basis that, currently, Melbourne lawyers are engaged for all parties. Counsel for Dow Agrosciences referred to Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCA 22 in which he says Mansfield J said that the convenience of the lawyers for the parties is to be regarded as a factor of little weight in the determination. 7 If the matter comes to a balancing of factors, I have an applicant saying that it would be more convenient and less expensive to conduct the proceeding in Melbourne, a first respondent saying that it would be more convenient and, therefore, presumably less expensive for it to conduct the appeal in Sydney, and a second respondent for whom, it seems to me, there is no aspect of convenience or expense favouring either option. On this basis, there is nothing to tip the balance in favour of the applicant, and the requirement of the rules that the notice of appeal be filed in an appropriate registry should prevail. 8 The parties have asked that, whatever conclusion I come to on those matters, I make orders in relation to the completion of the preparation for the hearing of the appeal. The orders I make are as follows: