Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: cited
provisions were considered by a Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. The Court said (at 161-162) that: "The Federal Court is a Court of wide jurisdiction throughout Australia whose judges may sit, whether as Full Courts or single judges, at any place in Australia. The Court has registries in each of the capital cities of the States and the Territories. The purpose of the provision in the rules of a "proper place" is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding. The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. 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 on 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" (emphasis added). As National Mutual makes clear, the Court has an unfettered discretion which is to be exercised in the interests of justice in the circumstances of the case in which the application is made. The applicant contends that the proceeding should be transferred to the New South Wales District Registry for a number of related reasons. Since the representative proceeding was instituted in Victoria, the Australian Competition and Consumer Commission ("the ACCC") has commenced proceedings against some of the respondents in respect of the same or substantially similar conduct on which it appears that the present applicant also relies. All of the proceedings commenced by the ACCC have been filed in the New South Wales District Registry. Proceedings against Qantas and British Airways were heard and determined in Sydney by Lindgren J in December 2008. There are presently before Jacobson J proceedings which have been brought by the ACCC against Singapore Airlines (NSD 1980/2008), Cathay Pacific (NSD 363/2009), Emirates Airlines (NSD 876/2009) and Garuda Airlines (NSD 955/2009). Jacobson J has expressed the view that "... it seems to me that it is convenient for [these cases] to be case managed together. They are going to raise very similar issues and it would be more effective if they run in tandem, at least for the time being". Jacobson J has also been involved in a number of interlocutory hearings in some of these proceedings.