Waratah Engineering Pty Ltd v Wollongong Resources Pty Ltd [2025] FCA 1050

1. Waratah Engineering advances claims under two separate contracts in the statement of claim:

(1) The first concerns a contract for the manufacture and supply of mining equipment. The claim relating to this contract is advanced primarily in contract and is for damages said to arise from non-payment of an amount under the contract and the costs associated with, among other things, the suspension of works (the First Contract Claim).

(2) The second concerns a hire contract for mining equipment. This claim primarily concerns damages for alleged non-payment of hire fees and for other associated costs, including repair costs (the Second Contract Claim).

1. In addition, Waratah Engineering has pleaded causes of action alleging misleading or deceptive conduct arising from conduct connected with the facts that give rise to the First Contract Claim and the Second Contract Claim.
2. By its defence, Wollongong Resources claims that the equipment manufactured and supplied in the contracts the subject of the First Contract Claim and the Second Contract Claim were defective and unfit for purpose. There is a cross-claim, by which Wollongong Resources raises issues broadly connected to the Second Contract Claim. Issues concerning the fitness for purpose of the goods supplied are said to give rise to issues of considerable complexity requiring expert evidence. The cross-claim also identifies an action in restitution, that is said to require expert valuation evidence. There are other issues concerning whether there was a force majeure event, and whether certain repair costs were reasonable.

1. Wollongong Resources submits that the relevant factors point to New South Wales as the proper forum. It broadly relies on the following factors.
2. Wollongong Resources and Waratah Engineering both operate in New South Wales.
3. Waratah Engineering operates a manufacturing facility in a suburb near Newcastle, approximately two hours' drive north of Sydney. Its registered office is in Wollongong, a large regional city just over an hour south of Sydney.
4. Wollongong Resources is located in Wollongong.
5. The contracts underpinning both the First Contract Claim and the Second Contract Claim were entered into in New South Wales. They are alleged to have been breached in New South Wales, and any loss has been suffered there.
6. The relevant items of equipment are located in New South Wales, and the condition of those items may require inspection for the purposes of evidence to be given at the trial. Any such inspection would take place in New South Wales. It is said that, if the proceeding is not transferred to the New South Wales District Registry, the location of equipment would cause Wollongong Resources to either engage expert witnesses based in Melbourne and incur the costs associated with them travelling to New South Wales to carry out inspections, or expert witnesses based in New South Wales who would travel to Melbourne for the trial. Either prospect is said to involve cost and inconvenience.
7. Wollongong Resources' lay witnesses are resident in the Illawarra region of New South Wales (that is, in or around Wollongong). One is no longer employed by the respondent, and so cannot be directed by it to attend Melbourne for the purposes of a hearing.
8. Wollongong Resources relies in addition on the following factors:

(1) its solicitors and counsel are based in Sydney, and therefore will likely need to attend all case management hearings and interlocutory hearings remotely, whereas the applicant's legal representatives are able to appear in person. The respondent accepts that the degree of relative disadvantage is minimal, but argues that it nonetheless exists, and exists only because of the filing decision of Waratah Engineering.

(2) Wollongong Resources will bear the additional cost for its legal representatives to travel to Melbourne for the trial.

(3) Wollongong Resources will be required to procure its witnesses to travel to Melbourne from New South Wales, and to bear all such costs, including time based costs from expert witnesses. It speculates that this may present an unnecessary impediment to experts accepting an engagement. The alternative is for witnesses to appear remotely. Wollongong Resources points out (correctly) that this is not a right and that such leave is not always granted (noting recent attitudes of this Court expressed in Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 at [38]- [45] (Lee J); Southernwood v Brambles Limited (No 2) [2022] FCA 973 at [42] (Murphy J)).

1. It is said that taken together, these matters are relevantly prejudicial to Wollongong Resources, and that they represent sound reasons to transfer the proceedings to the New South Wales District Registry. Ms Walkom deposes that, based on her experience of running cases of this nature, the additional costs of the proceeding taking place in Melbourne "may approximate $36,960".
2. It is said that there are minimal reasons for the matter to proceed in Victoria, save the location of Waratah Engineering's solicitors.

1. Waratah Engineering opposes the application. It argues among other things that the application is a delaying tactic, and that Wollongong Resources seeks, by this application, to change the proper place of the proceeding as well as the venue.
2. The applicant argues in addition that it is appropriate that it retain its chosen legal team in Melbourne. It is said that Mr Whelan is the applicant's preferred and trusted solicitor. Moreover, counsel (resident in Victoria) has been involved since early 2024.
3. In response to the specific matters relied upon by the respondent, it argues that:

(1) it is the applicant's prerogative to choose its legal representatives and the Court Registry, and that having done so, it was entitled to commence and continue the proceedings;

(2) the Victorian District Registry is currently the 'proper place' for the proceedings;

(3) the Federal Court is a national Court with the ability to deal with the proceeding using its technical capabilities which permit hearings to proceed by video;

(4) the factors identified by the respondent relating to the location of experts, equipment and lawyers are either "neutral or weak". Insofar as the respondent's submissions concerned witnesses more generally, they were said to be premature or speculative because no lay or expert witness evidence has yet been advanced, and particular witnesses are identified in the respondent's submissions as "proposed", "likely" or "probable"; and

(5) the balance of convenience does not favour either the change of the proper place of the proceeding or the venue of the hearing.

1. In addition, Waratah Engineering suggests that there was relevant delay in bringing the application, or that the application itself represents a delaying tactic.

1. Section 48 of the Act permits a party to seek an order that the proceeding be transferred to, and continue in, another Registry. The applicant submits, correctly, that the question of which Registry should conduct a proceeding does not raise a matter of high principle. However, there are principles relevant to the exercise of the discretion. They have been set out carefully by Anderson J in Comeau v Libbesson [2019] FCA 1577 (Comeau). His Honour in that case adopted a useful summary at [13] of the relevant principles provided by McKerracher J in Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrators Appointed) (in liq) [2009] FCA 227 (Mortimer). Justice McKerracher in Mortimer said that the relevant principles were (at [15]-[17]) (citations omitted):

• There must be sound reason to direct that the proceeding be conducted or continued elsewhere. If the party commencing the proceeding chose the place capriciously the Court would be justified in giving no weight to the choice of place. The balance of convenience is important but its weight must vary from case to case. What needs to be ascertained is where the case can be conducted or continued most suitably bearing in mind the interests of the parties, the ends of justice and determination of the issues between them, and the most efficient administration of the Court...
• The location of parties and witnesses, the place where the cause of action arose and the convenience of the Court are all factors...
• Typically there is no factor that is determinative but rather it is necessary to weigh all the relevant factors that might connect the proceedings to one jurisdiction or the other...
• The national character of the Court including its capacity to make flexible arrangements for the taking of evidence and the receipt of submissions is relevant...
• The question of which District Registry should conduct the proceedings does not raise matters of high principle. Essentially it is a matter of case management and proper recognition of the legitimate interests of each of the parties reflected in the balance of convenience as between them and the convenience of the Court and any economies and efficiencies which may attach to one choice or the other...
• There may be flexibility - one Registry could conduct pre-trial management while allocating the trial to a judge in another Registry...
• There is no burden of proof governing the exercise of the discretion in s 48 of the Act...
• The existence of related proceedings which may be case managed jointly may be important...

Factors which may be relevant for consideration include:

• the residence of the parties, the residence of the witnesses, the expense and prejudice likely to the respective parties, the likelihood of delay being a significant consideration, whether there is, in respect of the competing suggestions as to venue, any possibility of an interference with a fair trial of the hearing, the balance of convenience in regard to all considerations...

To these points I would add, perhaps an obvious point, that a judge to whom management of a case has been allocated will be reluctant to transfer that duty to another judge unless there is good reason to do so.

1. Of course, as noted by Anderson J in Comeau at [15], s 48(1) must now be applied in a way that best promotes the overarching purpose of the civil procedure and practice provisions that apply in this Court. Thus the discretion conferred by s 48, while broad, is subject to the terms of s 37M of the Act, which states that the overarching purpose of the civil procedure and practice provisions is the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. The balance of convenience as to the proper Registry for the conduct of the proceeding must be sufficiently pronounced to warrant positive action to change the status quo (Comeau at [16]).
2. Waratah Engineering submits that an application under s 48 is not necessary and the present application should be under r 5.04 of the Rules. In Lifeplan Australia Friendly Society Ltd v Woff [2015] FCA 290 at [11], Besanko J said that he did not need to form a final view as to the appropriate rule. In ACN 168 479 614 Pty Ltd (formerly known as Steller Developments Pty Ltd) (in liq) (Receivers & Managers appointed) v Smedley, in the matter of ACN 168 479 614 Pty Ltd (No 2) [2024] FCA 1412 (Smedley) Goodman J noted at [6] that r 5.04(1) could be a more apt rule where the Court was simply deciding where to conduct the trial. I do not consider that anything turns on the distinction in this case; it is clear that I have a broad discretion to decide where or how to conduct the trial, and to determine where the proper place of the proceeding ought to be, and that is reflected in the terms of both s 48 of the Act and rr 2.02 and 5.04(1) of the Rules. There is no suggestion that different factors would apply depending on which rule or provision grounded the power to grant the application.

1. The Federal Court has a national character, and is an Australia-wide Court with the capacity to make flexible arrangements for the taking of evidence (Gunning v State of Queensland (Transfer Application) [2024] FCA 889 at [14] and [16] (Dowling J)) if doing so is otherwise consistent with good case management and the interests of justice. These are matters which are recognised within the power conferred by s 48 (National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; 19 FCR 155 at 162 (Bowen CJ, Woodward and Lockhart JJ); cited with approval in Smedley at [7]).
2. Wollongong Resources points to a number of factors which may make it more costly or difficult for it if the proceeding is not transferred. It is difficult to assess in advance whether circumstances will necessitate that a witness be heard in person, or if their evidence can appropriately be given remotely. It may be that the nature of the evidence that an individual is asked to give is of a kind that makes it inappropriate or less desirable that they do so remotely. However, it is difficult to state with certainty at this stage that this is such a case that will require attendance in person.
3. The reality is that many of the potential lay witnesses are located outside of Sydney either in Wollongong or near Newcastle. In many respects, it is likely that they will need to travel in any event, even if the trial was moved to Sydney. That travel would be less burdensome, but this does reduce the significance of the requirement to travel to Melbourne.
4. All of Wollongong Resources' relevant lay witnesses are resident in New South Wales, as are its legal representatives. Additionally, the equipment likely to be relevant to evidence given in the trial is located there. It is appropriate to seek to clarify the venue prior to engaging experts (noting the relevance which location may have on availability). However, there is force in the submission that the identity and status of the witnesses are unclear at present, and it is premature or speculative to contend that this is or will be a powerful factor. Similarly, experts will be required to travel to view machinery or to any trial in Sydney. Acceding to Wollongong Resources' application would reduce the cost and difficulty of these logistics - but only to a degree.
5. Waratah Engineering argues that the cost estimates of Wollongong Resources are likewise speculative. That is the case to a certain extent, however, the issues have crystallized enough that it is possible to have the trial set down on an estimate of five days (albeit that Wollongong Resources contends six days will be required). However, the concerns about expert witnesses do appear somewhat speculative given that it appears on the material before me that the issues with the experts are merely expected, and no approaches have been made to potential experts to make good the prejudice or cost about which Wollongong Resources is concerned.
6. In addition, although it is not necessary to set it out at a granular level, I do not accept all of Ms Walkom's evidence regarding the anticipated additional expenditure if the transfer application is not granted. For instance, the basis for the proposition that certain ancillary costs (such as printing) will increase is not clear, given the respondent's solicitors have an office in both Sydney and Melbourne. In addition, there are orders in place for an electronic Court Book. Ms Walkom's estimate of the additional cost of running the trial included an additional $5,000 for "courier and printing costs" if the hearing were to take place in Melbourne. Ms Walkom also calculates accommodation and related costs based on a six day hearing, in circumstances where the hearing is set down for five days. Although I accept that the hearing estimate may be extended as the trial approaches, this discrepancy underscores the premature nature of the inquiry at this stage.
7. I do not accept the applicant's submission that there was relevant delay in filing the application, nor that acceding to it would cause delay. If the matter were to be transferred, all timetabling orders would remain in place, and the trial would be conducted before me in Sydney.
8. It does not appear to be in dispute that transferring the proceeding would cause additional cost to Waratah Engineering which would have to pay for the travel of its legal representatives. Given that each side's legal representatives are based in one or other of the potential locations, this factor is neutral.
9. The application is finely balanced. Ultimately, I have concluded that the factors identified by Wollongong Engineering are not of a sufficiently pronounced character so as to warrant the transfer of the proceeding. It is clear that one of the parties will be (perhaps marginally) disadvantaged by the place of the proceeding; on the material before me I am not persuaded that it is appropriate or necessary in the interests of justice to transfer the proceedings in this instance.

1. There is nothing inappropriate in the present application. It was made in a timely way, on proper material and with a proper foundation in the authorities. My decision was reasonably finely balanced. I have nonetheless decided to refuse the application, and costs will follow the event.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.