Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2017] FCA 1616

FEDERAL COURT OF AUSTRALIA

Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2017] FCA 1616 File number: NSD 2072 of 2017

Judge: LEE J

Date of judgment: 21 December 2017

Catchwords: PRACTICE AND PROCEDURE – application to transfer proceedings from the New South Wales Registry to the Western Australian Registry pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) – relevance of the National Court Framework and increasing national character of the Court and the legal profession – exercise of discretion subject to the overarching purpose provisions in s 37M of the Federal Court of Australia Act 1976 (Cth) – where the matter is to be heard on an urgent basis and no trial judge has yet been identified – exercise of discretion consistently with the overarching purpose of the civil practice and procedure provisions not in favour of transfer – application dismissed with costs

Legislation: Federal Court of Australia Act 1976 (Cth), Pt VB, ss 37M(1), 37M(3), 48 Land Administration Act 1997 (WA), s 18

Cases cited: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155

Date of hearing: 21 December 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicants: Mr B Le Plastrier

Solicitor for the Applicants: Bartier Perry

Counsel for the Respondents: Mr T Langdon

Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS NSD 2072 of 2017

BETWEEN: PLANKTON AUSTRALIA PTY LIMITED First Applicant

PLANKTON FARMS PTY LIMITED Second Applicant

IAN SIMON TRACTON Third Applicant

AND: RAINSTORM DUST CONTROL PTY LIMITED First Respondent

ROBERT GREGORY KERR Second Respondent

JUDGE: LEE J DATE OF ORDER: 21 DECEMBER 2017

THE COURT ORDERS THAT:

1. The respondents' interlocutory application dated 19 December 2017 and filed on 21 December 2017 be dismissed. 2. The respondents pay the applicants' costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

a introduction and background 1 An interlocutory application has been filed by the respondents seeking an order for the transfer of these proceedings to the Western Australian Registry of the Court. 2 The proceedings first came before me as duty judge on 4 December 2017. At that time, an application was made for urgent interlocutory relief. Following an interim regime being agreed between the parties, the applicants sought an urgent final hearing. 3 At that stage, I indicated to the parties that in relation to various separate liability issues (that is, the urgent aspects of the relief sought) it may be possible for a hearing to be conducted before me in Sydney at the end of December 2017, including with the Court sitting, if necessary, on 29 December 2017. 4 It became evident in a subsequent case management hearing that the respondents intended to attempt to adduce evidence from a number of witnesses at the hearing, which meant that the case may not be able to be conducted within the time available at the end of 2017 and that the proposed truncated timetable would potentially prevent the respondents from marshalling the evidence they wished to adduce at the hearing. 5 From both before and shortly after the proceedings were commenced, the respondents have maintained that the proceedings involve Western Australian land and that the majority of conversations and dealings between the parties took place in Western Australia. Indeed, even before proceedings were commenced, the respondents entreated the applicants that if proceedings were instituted, they be commenced in the Western Australian Registry. 6 Be that as it may, both the applicants and the respondents recognise that the liability aspects of the proceedings should be determined as quickly as possible. This is now common ground and it is unnecessary for the purpose of these reasons to go into the detail, but it suffices to note that on 15 December 2017 an interlocutory regime was put in place by which all interlocutory steps are to be completed by 8 February 2018 and by which a separate hearing is to be listed on a date to be fixed in February 2018. 7 The reason why I was prepared to accede to such an expedited timetable was first, because I considered that the issues to be determined at the separate hearing were of a relatively narrow compass and could likely be resolved with alacrity and, secondly, as a reflection of the fact that as a commercial court, every reasonable effort should be made to resolve commercial disputes as quickly as possible, subject to the other demands on the Court. 8 As counsel for the applicants put it, given that there is a hearing date in February 2018, the issue is not so much where the trial should be heard, but in locating a judge who will be in a position to both hear the case and potentially deliver judgment by the end of February 2018.

b consideration 9 Section 48 of the Federal Court of Australia Act 1976 (Cth) (FCAA) is the source of the power conferred on the Court to transfer a proceeding commenced in one Registry of the Court to another place. It is well established that the relevant discretion is to be exercised flexibly, the ultimate test being "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": see National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162 per Bowen CJ, Woodward and Lockhart JJ. 10 It was said in Sentry Corporation (at 162) that the "power conferred on the Court or a judge by s 48 is in terms wholly unfettered". This is not now strictly accurate by reason of legislative changes since the decision in Sentry Corporation was delivered. In particular, s 37M(3) of the FCAA provides that any civil practice and procedure provisions must be interpreted and applied, and any power conferred by them must be exercised or carried out, in a way that best promotes the overarching purpose. In accordance with the dictates of s 37M(1) of the FCAA, the overarching purpose is, of course, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 11 This is a national Court. It is not a collection of federated courts. The National Court Framework was a fundamental reform of how the Court operates, its key purpose being to facilitate the Court operating "as a truly national and international Court". As is now well known, the Court's workload is now organised by reference to National Practice Areas and matters are allocated nationally, focusing on responding to the needs of the case and the parties. Considerations which loomed large in earlier transfer cases (decided at an earlier stage of the Court's evolution) now need to be assessed by reference to these significant changes. Apart from the introduction of Part VB of the FCAA and the changes wrought by the National Court Framework, in exercising the broad discretion conferred by s 48 of the FCAA, relevant considerations in transferring cases include the increasing ability of commercial parties to have access to economical airfares, and the increasingly national character of the legal profession. 12 Despite these considerations, there are, as the respondents submit, a number of factors pointing to the fact that it may be appropriate for the hearing to be held in Western Australia. That is quite a distinct matter from whether or not the proceedings should be transferred from the New South Wales Registry to the Western Australian Registry. In this regard, the respondents point to the fact that all of the witnesses proposed to be called by the respondents have no connexion with New South Wales: Mr Kerr lives in Perth, Messrs Doull and Guthrie live in Karratha (approximately 1250 kilometres from Perth) and Mr Keenan lives in British Columbia, in Canada. Additionally, there is the possibility of a further witness being called who is located in Perth, as well as two employees of the applicants who are located in Perth who may be required to provide instructions to the respondents. By way of contrast, only one witness is proposed to be called by the applicants, and that witness is located in Sydney. Whether these submissions by the respondents as to the location of witnesses who can give admissible evidence are justified will become clearer following service of the respondents' affidavit evidence. 13 The further matters called in aid by the respondents are that the relevant land (access to which is at the heart of the dispute) is located in Western Australia and that any subsequent valuation evidence may involve the necessity of retaining an expert with some understanding of local conditions. Somewhat surprisingly, the point was also made that there is a necessity for State Ministerial approval under s 18 of the Land Administration Act 1997 (WA), which is said to be relevant to the dispute concerning an offer relating to the relevant land. This last point can be discounted immediately, given that the relevant terms of Western Australian legislation, and its proper construction, are not in dispute. 14 Although there is some force in the respondents' contention that a number of relevant factors point to Western Australia being an appropriate place for the separate trial to be heard, this is no answer to the overriding consideration that I must give effect to the overarching purpose and ensure that the case, which is to be heard urgently, is heard in a place which is most convenient to its speedy disposition. This will depend, almost entirely, on identifying an available judge who can hear it with celerity. As I indicated during the course of oral submissions, it will be entirely a matter for the trial judge to form a view as to whether it would be appropriate (and also convenient) to conduct the whole or part of the hearing in Perth. Apart from anything else, this may include consideration being given as to other demands on that judge's time and whether or not the evidence proposed to be given by the witnesses located in Western Australia is relevant to the disposition of the issues on the separate questions to be tried at the hearing. 15 In these circumstances, and conscious of the requirement to give effect to the just resolution of this dispute as quickly, inexpensively and efficiently as possible, I consider the better course is to refuse to transfer the proceedings to the Western Australian Registry. This is not to say that I am expressing any view as to what may occur following identification of the trial judge and that judge further managing the case including, to the extent the trial judge is called upon to make any assessment, any consideration being given to where the separate hearing should be held (an assessment which will have the benefit of being made following service of the respondents' evidence).

c conclusion and orders 16 For these reasons, I dismiss the interlocutory application with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: 4 January 2018