relevant principles
16 The first respondent, which is the applicant for transfer, was content to proceed on the basis that the first question on the application was whether the proceeding should be heard by a court in Queensland, and the second question was which court in Queensland. In this case, the burden of the argument was that the case was "connected" with Queensland and that the balance of convenience favoured Queensland. In the circumstances, and perhaps in any event, I think the appropriate approach is to consider first whether the proceeding should be transferred from this registry to the Queensland registry of this Court. There is power to do that in s 48 of the Federal Court Act, and it is not necessary for me to consider whether such an order could be made under s 37P of the Federal Court Act. It is not clear to me that such an order could be made under that section.
17 The relevant principles in relation to s 48 of the Federal Court Act are well-known. They are set out in National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155 ("National Mutual Holdings v Sentry Corporation") and Cycles & Wheelman Pty Ltd and Others v Beltech Corporation Ltd (1988) 80 ALR 279 (see also Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 ("Wepar Nominees v Schofield") at [4]-[12]). It is sufficient for me to refer to the following passages in the reasons of the Full Court in National Mutual Holdings v Sentry Corporation at 162:
The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances.
The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. 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.
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
18 With respect to the power of this Court to transfer a proceeding to the Supreme Court of a State, s 138C of the Competition and Consumer Act provides, relevantly:
138C Transfer of matters by the Federal Court
(1) Subject to subsections (2) and (3), if:
(a) a civil proceeding instituted by a person (other than the Commonwealth Minister or the Commission) is pending in the Federal Court; and
(b) a matter for determination in the proceeding arises under this Part or the Australian Consumer Law;
the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in the proceeding, to a court of a State or a Territory.
(2) The Federal Court must not transfer a matter to another court under subsection (1) unless:
(a) the other court has power to grant the remedies sought before the Federal Court in the matter; and
(b) it appears to the Federal Court that:
(i) the matter arises out of, or is related to, a proceeding that is pending in the other court; or
(ii) it is otherwise in the interests of justice that the matter be determined by the other court.
(3) [Not relevant to the issues on this application].
...
19 The relevant power is that contained in s 138C(2)(a) and (b)(ii), and the criterion is whether it is in the "interests of justice" that the matter be determined by the other court.
20 Section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act provides, relevantly:
5 Transfer of proceedings
...
(4) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and
(b) it appears to the first court that:
...
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;
the first court shall transfer the relevant proceeding to that Supreme Court.
Again, the relevant criterion is the "interests of justice".
21 Rule 27.21 of the Rules provides that a party may apply to the Court for an order that the proceeding be transferred to another court.
22 Section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act requires the Court to transfer a proceeding once it has reached the conclusion that it is in the interests of justice to do so. Section 138C of the Competition and Consumer Act is not expressed in those terms, although it is difficult to foresee cases where an order for transfer would not be made where the interests of justice pointed in favour of that course.
23 The Court of Appeal in New South Wales considered the meaning to be given to "interests of justice" in an early case under the cross-vesting legislation: Bankinvest AG v Seabrook and Others (1988) 14 NSWLR 711; (1988) 90 ALR 407 at 409 per Street CJ, at 410 per Kirby P, and at 425 per Rogers A-JA.
24 The content of the interests of justice criterion was considered by the High Court in BHP Billiton Limited v Schultz and Others (2004) 221 CLR 400. In that case, the first defendant applied to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) for an order transferring the proceeding to the Supreme Court of South Australia. Gleeson CJ, McHugh and Heydon JJ said that a party seeking a transfer in the interests of justice was not required to show that the first court's jurisdiction was not regularly invoked, or that it is a clearly inappropriate forum. It is sufficient if the second court is more appropriate. The interests of justice are not the same as the interests of one party, and, in fact, there may be matters relevant to the interests of justice which transcend the interests of both parties. The adjectival advantages of one court over another may be relevant to the interests of justice (at 421-422, [15]). The alleged adjectival advantages of one court over another were considered in an early case under the legislation: Bourke and Others v State Bank of New South Wales (1988) 22 FCR 378 at 394 per Wilcox J.
25 The exclusive jurisdiction clause deals with the law which is to govern the contract, provides that the Courts of Queensland have exclusive jurisdiction, and prescribes a pre-litigation dispute resolution procedure. For present purposes, the significant aspect of the clause is that it purports to provide that, to the extent that a party is entitled pursuant to the contract to bring proceedings in a court pursuant to the clauses set out in General Condition 38, each party submits to the exclusive jurisdiction of the Courts of Queensland.
26 In National Dairies WA Limited and Others v Wesfarmers Limited (unreported, Tamberlin J, 22 July 1996) ("National Dairies v Wesfarmers"), Tamberlin J considered an application filed by the respondent to a proceeding to have the proceeding transferred to the Western Australian registry for hearing by the Federal Court in that State, or, in the alternative, to cross-vest the proceeding in the Supreme Court of Western Australia. The applicant's claim arose out of agreements for the sale of land, plant and equipment, shares, and other assets. There was a governing law clause which included an exclusive jurisdiction provision identifying the Courts of Western Australia as the appropriate courts. Tamberlin J noted that the clause did not purport to govern matters of jurisdiction, venue, or applicable law in relation to trade practices claims made by the applicant, and that it only related to contractual claims. Tamberlin J approached the matter by asking the following questions:
whether the matter should be heard in Western Australia;
whether the matter should be cross-vested to the Western Australian Supreme Court; and
whether a determination of the above questions is premature.
27 Tamberlin J considered that the governing law clause was relevant to whether the matter should be heard in Western Australia. Furthermore, he considered the governing law clause very significant in determining which court was the appropriate forum. His Honour said:
In deciding which Court is the appropriate forum the agreement of the parties as to the governing law is very significant. While the provision as to the governing law does not refer to the Federal Court, on a broad construction, this Court could possibly come within the description of "Courts of Western Australia". However, the clause conveys to me a preference for determination of the contractual issues exclusively by the Courts of the State of Western Australia. This is understandable given the extensive references in the agreement to Western Australian regulatory laws.
28 In Todber Pty Ltd and Others v Glendale RV Syndication Pty Ltd and Others [2004] FCA 1328; (2004) 211 ALR 390 ("Todber v Glendale RV Syndication"), Selway J considered an application by some of the respondents in a proceeding to have the proceeding transferred from the South Australian registry of the Federal Court of Australia to the Supreme Court of Victoria. There was no application before his Honour to transfer the proceeding to the Victorian registry of the Federal Court. The application was made pursuant to the Trade Practices Act 1974 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act.
29 Selway J referred to the passage in National Dairies v Wesfarmers which I have set out and then said (at 396, [27]):
In this part of his reasoning his Honour would seem to distinguish the TPA claims from the contract claims in the case before him. However, the jurisdiction conferred on this Court by s 86 of the TPA is a jurisdiction in relation to a "matter" which will include an "attached non-severable" claim: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 583-6; 163 ALR 270 at 310-13. It may be that in the case before his Honour the claims were relevantly severable. Apart from that possibility, I regret that I am unable to agree with that particular part of his Honour's reasoning. In this case it has not been argued that the relevant claims, whether based on the TPA or otherwise, are severable.
30 His Honour went on to say that he was not satisfied that the exclusive jurisdiction provision had any application. He then said (at 396, [29]):
... Even if it did, the parties cannot reach any agreement that this Court does not have jurisdiction to determine the "matter" in the current proceedings. If they cannot reach such an agreement then it cannot be "in the interests of justice" to give effect to it. It may be that the clause can be understood as an agreement that it is in the interests of justice that the proceedings be heard in Victoria. If so the clause has no application to the question whether the case should be transferred to the Supreme Court of Victoria or should be heard in this Court. It may have some effect on the question whether the proceedings should be transferred to the Victorian Registry of this Court, but that is a different question.
31 I agree with the observations of Selway J and propose to follow them.