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[2010] FCA 1498
procedural. The proceeding was transferred to the New South Wales District Registry. A registrar was to settle the appeal-book index and could give directions for preparation, including for filing and service...
1 cited instrument linked from this judgment.
This was a procedural decision about where an appeal should be handled, not a decision about the underlying dispute between Dow Agrosciences and the CEO of Customs. Because the Tribunal had heard the matter in New South Wales, the Federal Court rules pointed to the New South Wales District Registry. The rules allowed the Court to choose another registry, but Nufarm's reliance on the convenience and cost of Melbourne lawyers did not outweigh Dow Agrosciences' competing preference for Sydney. The Court therefore transferred the proceeding to New South Wales and made directions for preparing the appeal.
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2,238 words · generated 30/09/2026
Gray J’s reasons concern a short directions hearing on 20 December 2010 in the Federal Court of Australia. Nufarm Australia Ltd had brought an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The underlying Tribunal proceeding had been instituted by Dow Agrosciences Australia Ltd against the Chief Executive Officer of Customs. Nufarm applied to be added as a party in the Tribunal. Nufarm’s counsel told Gray J that Nufarm had been the “chief contradicting party” there and had called all the evidence against Dow Agrosciences ([2]).
The appeal was limited to questions of law. Gray J recorded that Nufarm’s notice of appeal did raise questions of law ([1]). The issue before him on this occasion was not whether those grounds succeeded. It was where the appeal should be handled and what procedural arrangements should be made for preparing it.
The Federal Court Rules connected the appropriate registry to the location of the Tribunal hearing. The Tribunal had heard the matter in New South Wales, so the ordinary registry was the New South Wales District Registry ([3]). Nufarm sought a different registry. Its original solicitor had undergone surgery and was no longer able to represent it. Nufarm had engaged replacement solicitors whose principal office was in Melbourne, although those solicitors also had an office in Sydney ([4]).
The parties did not agree on the proposed change. Nufarm relied on the convenience and lower cost of conducting the appeal in Melbourne because Melbourne lawyers were then engaged for all parties. Dow Agrosciences opposed the change and preferred Sydney. The CEO of Customs supported Nufarm’s application only on the basis that a solicitor in Melbourne had charge of the file and proposed to brief Melbourne counsel. Gray J considered it equally convenient for the CEO to appear through the Sydney office of the Australian Government Solicitor and, if it wished, to brief New South Wales counsel ([5]).
The location of witnesses did not assist Nufarm. Although material suggested that most Tribunal witnesses were in Sydney, Gray J said witness location was irrelevant because the appeal concerned a question of law ([4]). The Court ultimately found nothing that tipped the balance in favour of Nufarm and held that the rules’ registry requirement should prevail ([7]). It transferred the proceeding to the New South Wales District Registry and made directions for preparing and listing the appeal ([8]).
The procedural framework had two parts. First, O 53 rr 1 and 2(2) of the Federal Court Rules made the district registry for the State or Territory where the Tribunal heard the matter the “appropriate registry” for filing a Tribunal appeal. Since the Tribunal hearing took place in New South Wales, that framework pointed to the New South Wales District Registry ([3]).
Second, O 53 r 2(3) allowed the Court, before or after filing the notice of appeal, to order that a nominated registry was the appropriate registry. Gray J described this as a discretion to depart from the default requirement. He also observed that the rule did not specify the factors relevant to exercising that discretion ([3]). The reasons do not set out a comprehensive test or a list of mandatory considerations. Instead, the judge assessed the competing convenience and expense claims in the circumstances before him.
The appeal’s legal character affected that assessment. Nufarm had material indicating that many witnesses were located in Sydney, but the Court did not treat that as a reason to choose Sydney or Melbourne. The evidence had been called in the Tribunal, and the Federal Court appeal was limited to questions of law. Gray J therefore treated witness location as irrelevant to the registry question in this appeal ([4]). The point is tied to the procedural character of this matter; the reasons do not establish a general rule for proceedings in which witnesses may need to give evidence in the Federal Court.
Nufarm’s remaining basis was convenience and cost associated with Melbourne lawyers. Dow Agrosciences had a contrary preference for Sydney. The CEO of Customs’ stated support for Melbourne depended on its file being in the hands of a Melbourne solicitor who proposed to brief Melbourne counsel. Gray J considered that the CEO could instead use the Australian Government Solicitor’s Sydney office and New South Wales counsel if it wished ([5]). His assessment therefore did not treat the CEO’s position as a material advantage for Melbourne.
Counsel for Dow Agrosciences referred to Baxendale’s Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCA 22, saying that Mansfield J had treated lawyers’ convenience as a factor of little weight ([6]). Gray J recorded that submission and identified the case as a point raised by counsel. His reasons do not independently discuss the earlier decision’s facts, reasoning or precise holding. It would therefore be inaccurate to treat this judgment as setting out a detailed explanation of Baxendale’s Vineyard.
The balance, as Gray J framed it, was between Nufarm’s claim that Melbourne would be more convenient and less expensive, and Dow Agrosciences’ opposing claim that Sydney would be more convenient and presumably less expensive. The CEO of Customs had no apparent convenience or expense preference favouring either option ([7]). With no sufficient factor favouring Nufarm, the default registry requirement prevailed. The decision applies the procedural rule to the competing positions, rather than deciding a substantive dispute about agricultural products, customs treatment, or the merits of the Tribunal’s decision.
The reasons describe the applicable registry rules before and after the Court’s decision. Before Gray J made his order, O 53 rr 1 and 2(2) identified the district registry in the State or Territory where the Tribunal heard the matter as the appropriate registry. O 53 r 2(3) supplied a discretion to nominate a different registry ([3]). Gray J expressly noted that the rule did not identify the relevant factors for exercising that discretion.
After the decision, the proceeding in this particular case was in the New South Wales District Registry. The order did not amend the rules or establish a new general test. It resolved the registry question for this appeal by finding that the competing convenience and cost claims did not tip the balance towards Melbourne ([7]).
The judgment also identifies a contextual consideration: witness location was irrelevant to choosing a registry for an appeal on a question of law ([4]). That proposition is expressed in relation to this kind of appeal, where the matter before the Court was not a trial requiring those witnesses to attend. The judgment does not analyse how the discretionary factors might operate in a different procedural setting, or where the appeal’s conduct depended on evidence from witnesses.
The source provides no wider account of the state of registry practice before this case, and no subsequent decisions. It is therefore not possible from this judgment alone to say whether later courts adopted, qualified or displaced Gray J’s approach. Nor does the judgment state that lawyers’ convenience can never justify a different registry. It records the submission about Baxendale’s Vineyard and then decides the particular balance before it.
At [1], Gray J states: “Such an appeal is limited to a question of law, and the notice of appeal does raise questions of law.” In plain English, the appeal was not a fresh hearing of all the underlying facts. The Court was dealing with legal questions raised by the notice of appeal. That explains why the location of the Tribunal witnesses did not determine the registry issue.
At [3], Gray J explains that the ordinary registry was the district registry in the place where the Tribunal had heard the matter. He then describes O 53 r 2(3) as giving the Court discretion to nominate a different registry, while noting that the rule did not prescribe relevant factors. In practical terms, New South Wales was the default because that was where the Tribunal hearing took place, but the Court could make an exception.
At [4], the judge says: “The location of witnesses is irrelevant in relation to an appeal on a question of law.” This means that having many witnesses in Sydney did not, on the circumstances of this appeal, provide a reason to choose a registry. The statement concerns the registry choice for this question-of-law appeal; the judgment does not consider other kinds of hearings.
At [6], Gray J records Dow Agrosciences’ counsel’s reference to Baxendale’s Vineyard. Counsel said that lawyers’ convenience was a factor of little weight in determining the registry. The source makes clear that this was counsel’s description of the earlier case. It does not provide the earlier judgment’s reasoning or a separate, detailed ruling on the proposition.
At [7], Gray J concludes that there was “nothing to tip the balance in favour of the applicant” and that the rules’ registry requirement should prevail. In plain English, the competing claims did not establish a sufficient reason to move the appeal to Melbourne. The default rule therefore decided the issue.
The orders at [8] dealt with the appeal’s next procedural steps. A registrar was to settle the appeal-book index and could give directions for preparation, including filing and service of written submissions. The appeal was to be listed for hearing on a date to be fixed, with the costs of the day reserved.
The judgment is most directly relevant to a procedural situation with these features: an appeal from the Administrative Appeals Tribunal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth); an issue about which Federal Court registry should handle the appeal; a Tribunal hearing held in a particular State or Territory; and a request to nominate another registry under O 53 r 2(3).
The reasons are particularly informative where the proposed change is based on lawyers’ location, convenience and cost, and the opposing parties have competing preferences. Gray J compared those competing claims rather than treating the applicant’s choice of lawyers as decisive ([4]-[7]). The judgment also addresses a case where one party’s stated support for a different registry depended on a particular lawyer and counsel being engaged in that place; the Court assessed whether that party could appear through its office and counsel in the default registry instead ([5]).
The ruling also speaks to a question-of-law appeal where the party seeking another registry points to the location of witnesses who appeared in the Tribunal. Gray J treated that location as irrelevant to the registry choice in the appeal before him ([4]). A cautious use of the decision should preserve that context and not turn the statement into a rule about witness location in every Federal Court proceeding.
The judgment does not provide a complete catalogue of relevant factors under O 53 r 2(3). It says the rule did not specify them ([3]), then resolves the application based on the particular convenience and expense arguments advanced. It cannot, by itself, establish how the Court would weigh factors not raised in this case, such as other case-management considerations.
The supplied judgment contains no later cases discussing or applying Nufarm Australia Ltd v Dow Agrosciences Australia Ltd [2010] FCA 1498. On the available source, the later treatment of the decision cannot be determined. No claim can be made here that another court followed, distinguished, criticised or overruled it.
The only other case named in the reasons is Baxendale’s Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCA 22. It is mentioned at [6] because counsel for Dow Agrosciences relied on it for the proposition that lawyers’ convenience was a factor of little weight. Gray J’s reasons do not set out the earlier case’s judgment or independently assess its precedential scope. The relationship evidenced by this source is therefore that Gray J referred to it in recounting counsel’s submission, not that this judgment contains a detailed analysis of it.
The judgment leaves open how the discretion under O 53 r 2(3) should be exercised in cases with different facts. Gray J notes that the rule does not specify relevant factors ([3]), but the reasons do not offer an exhaustive list or a general weighting formula. They show that competing convenience and expense claims were considered here; they do not establish what weight other considerations would receive.
The reasons do not determine how the registry discretion would apply if there were no opposing party with a competing convenience claim, or if the parties’ positions were materially different from those before Gray J. They also do not explain whether, or how, other practical considerations might affect the balance. Those matters would require sources beyond this judgment.
A further limit concerns the statement that witness location was irrelevant. The judgment links that observation to an appeal limited to questions of law ([1], [4]). It does not decide the importance of witness location in a proceeding involving a factual rehearing or a need for witnesses to attend the Federal Court.
Finally, this was a directions decision about registry and appeal preparation, not a determination of Nufarm’s substantive grounds of appeal. The judgment does not state whether those grounds succeeded, nor does it resolve the underlying Tribunal dispute. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
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:
Nufarm Australia Ltd
Dow Agrosciences Australia Ltd
[2010] AATA 859
The proceeding was transferred to the New South Wales District Registry. A registrar was to settle the appeal-book index and could give directions for preparation, including for filing and service of written submissions. The appeal was to be listed on a date to be fixed, and costs of the day were reserved.