Case: National Mutual Holdings Pty Ltd &amp; Ors v Sentry Corporation &amp; Anor (1988) 18 FCR 155
Outcome: cited
provisions were considered by a Full Court in National Mutual Holdings Pty Ltd &amp; Ors v Sentry Corporation &amp; Anor (1988) 18 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 and the States and 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 and 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 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." 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 Applicants' solicitors and counsel are based in Melbourne. They have chosen to commence the proceeding in the Victoria District Registry. In exercising the discretion conferred on the Court by s 48 and O 10 it is necessary that I consider whether, at this stage of the proceeding, the status quo should be disturbed. I can readily understand why the Respondents assert that it would be highly inconvenient to them and damaging to the interests of the First Respondent for them to have to travel to Melbourne to give evidence and instructions. Their evidence and submissions, however, are founded on a number of assumptions which may or may not prove to be correct. It is conceivable that a trial may not be necessary. The dispute, might, for example, be resolved through negotiations between the parties or mediation. Whilst the material presently before the Court suggests that, if a trial takes place, most of the witnesses will be residents of Perth, no concluded view of the domicile of most of the witnesses will be possible until the issues in dispute are defined. The number and identity of witnesses will not be able to be determined until the pre-trial process is much further advanced. Much less will it be possible to judge which witnesses will be required for cross-examination and how long their evidence is likely to take.