Shin Chin Distributors Pte Ltd v Parmalat Australia Limited ACN 009 698 015 [2003] FCA 1629 (11 December 2003)

PRACTICE AND PROCEDURE – application for the transfer of proceedings to the Queensland District Registry – whether transfer appropriate in the circumstances of the case

Federal Court of Australia Act 1976 (Cth) s 48

Build-A-Bear Workshop Inc v The Bear Kid´s Workshop Pty Ltd [2002] FCA 1192 cited

SHIN CHIN DISTRIBUTORS PTE LTD v PARMALAT AUSTRALIA LIMITED ACN 009 698 015
W19 OF 2003

LEE J
11 DECEMBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W19 OF 2003

BETWEEN:	SHIN CHIN DISTRIBUTORS PTE LTD APPLICANT
AND:	PARMALAT AUSTRALIA LIMITED ACN 009 698 015 RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	11 DECEMBER 2003
WHERE MADE:	PERTH

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W19 OF 2003

BETWEEN:	SHIN CHIN DISTRIBUTORS PTE LTD APPLICANT
AND:	PARMALAT AUSTRALIA LIMITED ACN 009 698 015 RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	11 DECEMBER 2003
WHERE MADE:	PERTH

1 This is a motion seeking exercise of the court's discretion under s 48 of the Federal Court Act 1976 (Cth) to direct that the proceeding be transferred in its entirety to the Brisbane registry, in other words that Brisbane henceforth be designated as the proper place for the purpose of the Rules for the future conduct of the proceeding. The applicant corporation carries on business in Singapore and is a Singaporean company. It does not carry on business in Australia as far as the material before the court discloses. It has not been suggested otherwise.

2 The dispute that constitutes the matter before the court concerns the termination of the services of the applicant as a distribution agent of the respondent in Singapore. The principal place of business of the respondent is in Brisbane. It is the place of registry and control of the corporation and all relevant personnel reside in Brisbane as far as the management and control of the company is concerned. The respondent instructs solicitors in Brisbane. Those solicitors are an independent firm and not a national firm.

3 The applicant came to Australia to litigate this dispute. The reason why Perth was chosen as the place to litigate is apparently to be found in the suggestion that the applicant had some knowledge or awareness of the firm of solicitors in Perth that it instructed to commence the proceedings. Just what the nature of that relationship is, or was, is unknown. It is not suggested that it was longstanding nor that any particular expertise in that firm was relied upon by the applicant. (See: Build-A-Bear Workshop Inc v The Bear Kid´s Workshop Pty Ltd [2002] FCA 1192 at [11])

4 In any event the solicitors so instructed terminated their appearance for the applicant some 3 to 4 months after the action was commenced. It is not suggested that the applicant had any pre-existing solicitor/client relationship in Perth with its current solicitors, a national firm. Whether there was a pre-existing solicitor/client relationship with that firm in other parts of Australia is unknown. It can be seen that the commencement of the proceedings in the Perth registry occasioned substantial inconvenience to the respondent but was a step of no great consequence for the applicant.

5 It is apparent that the eventual trial of the matter is likely to take place in Brisbane. Continuation of the matter in the Perth registry took place pursuant to directions I made in the matter, notwithstanding that the respondent foreshadowed an application to transfer the proceeding to the Brisbane registry. The respondent, by correspondence, sought the consent of the applicant to that course, but consent to transfer the proceeding was not forthcoming.

6 The directions made were that if there were to be an application to transfer the proceeding that it be brought within 14 days after the filing of a reply and defence to cross-claim. A cross-claim was foreshadowed and in due course that pleading was filed. Notwithstanding that direction, no application was made to transfer the proceeding within the 14 days provided and indeed the application was not filed until 6 to 7 weeks after the expiry of that period of leave.

7 What the directions had in mind was that the development of the ordinary steps of the proceeding by way of revelation of the nature of the case through pleadings may provide a better context in which to see whether there was a sufficient connection with this registry or some other reason that would make it appropriate for the matter to remain here. Having looked at the pleadings there does not appear to be anything arising out of those pleadings that shows a particular connection with Perth.

8 The connection that has arisen out of the matter being commenced here and continued here appears to be the instruction by the applicant of expert witnesses for the purposes of obtaining opinions and no doubt statements and eventually evidence from those persons. That may result in some inconvenience if those persons have to travel to Brisbane for trial if the trial is not split between Brisbane and Perth.

9 I note that in the period of delay occurring after 23 September this year no step took place in the proceeding. In other words the next step after the filing of the reply and defence to cross-claim was the filing of the motion, other than the filing of a list of discovery by the respondent. The period of delay does suggest that the respondent had decided to ‘grin and bear’ the inconvenience of this registry being the proper place until it discovered scope of the inconvenience that would arise out of the need to inspect numerous documents the applicant foreshadowed it would discover.

10 It would seem that otherwise the respondent was prepared to await the trial of the matter being heard in the Brisbane registry. That appeared to be a tacit understanding between the parties. Whether it was to be formalised as a matter of consent remained to be seen.

11 Insofar as the motion is a late motion that is a matter to be considered, but in this case it has to be put in context of there being an initial direction that the motion not be considered until a certain stage in the matter which, as it turned out, did not occur until September this year. It is to be contrasted with a late motion in a matter that is well advanced in preparation and where there has been no prior notice or indication of the likelihood of such a step being taken. At all times after the commencement of this matter the prospect of a motion to transfer the proceeding to Brisbane has been on the cards if not on the table.

12 The matter that I need to consider at this point is whether there is any compelling reason to transfer the matter from this registry. As at the commencement of the matter it would have been plain that the matter should be transferred to Brisbane. That has been diminished to some extent by the interlocutory steps undertaken under the direction that the Court has given. On the other hand the proceeding is also reaching an important phase where management of the matter will become important as far as the use of registry services are concerned.

13 The solicitors now representing the applicant are a national firm and there has been nothing put before me that would indicate that there would be any significant inconvenience in that firm carrying on the representation of the applicant in Brisbane. As I have indicated before, it is obviously and plainly more convenient for the respondent's solicitors to have the matter in the registry at Brisbane and not be put to the trouble, inconvenience and expense of instructing agents to act on their behalf in this registry as that becomes necessary in the developing preparation of the matter for trial.

14 Case management in a registry is partly assisted by the solicitors being on hand and available. Under the docket system a judge’s staff may be in frequent contact with solicitors for the parties and obviously it is an advantage in such management if representatives of the parties are readily available or at least in the same time zone. There is also another factor. At this point of preparation there has been greater disclosure of the respective positions of the parties and consideration of mediation may now be appropriate. The best place for that to be conducted would be where the parties are able to attend and to give instructions. On the respondent's part, obviously, that would be Brisbane. As far as the applicant is concerned it is faced with bringing personnel to either Perth or Brisbane. It follows that Brisbane would clearly be the preferred place to conduct mediation proceedings.

15 Having had regard to these matters and to the fact that there is no real connection with the Perth registry I consider that the proper exercise of discretion in this matter is to direct that the proceeding be transferred to the Brisbane registry and I will so order.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Counsel for the Applicant:	R.L. Le Miere QC

Solicitor for the Applicant:	Clayton Utz

Counsel for the Respondent:	P.L. O’Shea SC

Solicitor for the Respondent:	Biggs & Biggs

Date of Hearing:	11 December 2003

Date of Judgment:	11 December 2003