Case: National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155
Outcome: cited
The parties did not seek to rely on the jurisprudence concerning the transfer of proceedings or the determination of the "proper place" of proceedings under s 48 of the FCA Act, or O 10 r 1(2)(f) of the Rules. However, their submissions focussed upon the connection of the subject of the AAT proceedings and this appeal to Victoria and the respective convenience of the parties. Their submissions therefore in fact centred upon the sort of considerations discussed in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 and subsequent decisions concerning s 48 of the FCA Act and O 10 r 1(2)(f). 25 In this matter, there is no circumstance relevant to the efficient administration of the Court to be weighed. The appeal will be heard following the next Full Court callover with equal facility in Adelaide or Melbourne. 26 Clearly, the subject matter of the appeal is in Victoria. Nothing more need to be said on that point. The application to the AAT in its South Australia District Registry appears to have been made because the applicants were South Australian based, and had relevant interests in or in the vicinity of the King Valley area. 29 In my view, generally speaking, little weight should be given to the fact that counsel or the solicitors for a party are in a particular location. Principally, that is because the selection of counsel and solicitors is a matter for the parties. Their choice should not be of significance to the identification of the proper place of a matter. The Court is a national Court, with Registries in each State and Territory and can sit anywhere in Australia. However, to an extent, there is a tendency for parties to institute proceedings in a Registry of the Court convenient to counsel or the solicitors for the parties rather than in a Registry which has a real connection with the subject matter of the dispute, or indeed with the parties themselves or the witnesses. I do not think that the Registry where proceedings are instituted should be dictated by that consideration. Further, where that is the case, it may well be appropriate to transfer the proceeding to a proper place, having regard to the considerations discussed in Sentry and other cases. 30 For those reasons, I order that the Victoria District Registry is the appropriate Registry for this appeal and that the proceeding be transferred to the Victoria District Registry of the Court. 31 In my view, as the second respondent has succeeded on its motion, but only on one of the two matters it argued, the appropriate order is that the costs of the second respondent on the motion should be its costs on the appeal. The intention of that order is that, if the appeal is successful, there will in effect be no costs of the motion, but if the appeal is dismissed and the second respondent gets its costs of the appeal, those costs will include its costs of and incidental to the motion. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 23 January 2007 Counsel for the Applicant: D Agresta Solicitor for the Applicants: Iles Selley Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: T Ginnane SC and L De Ferrari Solicitor for the Second Respondent: J Francis Date of Hearing: 14 December 2006 Date of Judgment: 25 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/22.html