FEDERAL COURT OF AUSTRALIA Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974 FEDERAL COURT RULES – transfer of proceedings – commercement of proceedings at particular place – efficient case management – access to justice in commercial litigation – mitigation of disadvantage Federal Court Rules O 10 r 1(2)(f) Andrew and Frewin Pty Ltd v Arrow Ltd, unreported, 6 June 1990mentioned National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 applied CULTIVAUST PTY LTD & ANOR V GRAIN POOL OF WA NO S 104 of 1999 HEEREY J 5 JULY 2000 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 104 of 1999 BETWEEN: CULTIVAUST PTY LTD and ANOTHER Applicant AND: GRAIN POOL OF WA Respondent JUDGE: HEEREY J DATE OF ORDER: 5 JULY 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The notice of motion dated 29 May 2000 is dismissed. 2. The respondent pay the applicants' costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 104 of 1999 BETWEEN: CULTIVAUST PTY LTD and ANOTHER Applicant AND: GRAIN POOL OF WA Respondent JUDGE: HEEREY J DATE: 5 JULY 2000 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 By a notice of motion dated 29 May 2000 the respondent, The Grain Pool of WA, seeks an order that the proceeding be transferred to the Western Australian Registry of the Court. The application is made under O 10 r 1(2)(f). The proceeding was commenced by an application and statement of claim filed on 24 December 1999. The applicants are the first applicant Cultivaust Pty Ltd and the second applicant the State of Tasmania. Very briefly, the case which emerges from the statement of claim is as follows. 2 Tasmania is the holder of statutory rights under the Plant Variety Rights Act 1987 (Cth) and the Plant Breeders Rights Act 1994 (Cth) in relation to a strain of barley called Franklin barley. Tasmania granted a licence of those rights to Cultivaust. In 1991 Cultivaust entered into negotiations with Grain Pool. Cultivaust provided Franklin barley to Grain Pool for the limited purpose of growing trials and malting evaluation. 3 Further negotiations occurred in May 1992 with a view to a permanent licensing arrangement, but no concluded agreement was reached. However, it is said that Grain Pool used the barley provided and other information to exploit the barley in Western Australia. It is said that this was an infringement of the applicants' rights under the legislation, a breach of the limited licence granted by Cultivaust, a breach by Grain Pool of a fiduciary duty allegedly owned to Cultivaust arising out of the circumstance of negotiations and a breach by Grain Pool of a duty of utmost good faith owed by Grain Pool to Cultivaust. 4 The relief claimed includes damages or, alternatively an account of profits. It is alleged that Cultivaust has lost the income that it would have received from sales of Franklin barley to growers and others in Western Australia and the income from trading in and exploiting Franklin barley sold or grown on behalf of Cultivaust in Western Australia. It is also alleged that Cultivaust has lost income from sales to other persons such as malsters and from export sales. 5 The principles to be applied in exercising this discretion are not in dispute. The leading authority is the decision of the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, and particularly at pages 162 and following. I would at the outset refer in particular to what is there said by the Full Court: "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 order 30 rule 6 [which relates to venue for trial] either on the application of a party or of 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?" 6 It might be observed that in a sense this perhaps reverses the common law position where, absent some statutory provision for service out of the jurisdiction, the plaintiff must go to the defendant's jurisdiction and conduct the litigation there. In the present case it is not suggested that the applicants' choice of the South Australian registry was capricious or irrational. 7 The case put for Grain Pool in support of a transfer rested in large measure on what were said to be the cost and inconvenience of conducting proceedings, and in particular the trial, in South Australia. Very many of the witnesses who would be called are residents of Western Australia. Senior counsel for Grain Pool very fairly and frankly accepted that it is not a matter of head counting of witnesses. His submissions nevertheless contained a careful analysis of various factual issues which have emerged from the pleadings and details of named persons who would be at least potential witnesses on behalf of Grain Pool in relation to each of those particular issues. 8 While those details are relevant and important for the purposes of the exercise of the discretion, a number of things need to be said. There will also be, on any view, important witnesses who are resident in South Australia and Tasmania. Also many of the issues identified may ultimately become either non-contentious or subject to proof by documentary evidence. In the course of shaping this case towards an efficient trial, such matters will no doubt be considered along with other trial management matters. 9 This leads me to what I consider is an important feature in the present application. This matter is on the docket of von Doussa J, who, because of other commitments, was unable to hear the present application. The matter has proceeded to a stage where substantial discovery has taken place but further interlocutory steps will be necessary. Thus his Honour has already acquired a detailed knowledge of this case to date and will be able to direct the future trial management in a way consistent with earlier directions and the parties' expectations arising from those directions. 10 It would be a disruption to the efficient management of the case if another judge in Western Australia had to start afresh. The adoption by the Court of the individual docket system was designed to achieve a number of objectives, not least of which are the advantages which flow from consistent management directions by the one judge who will manage interlocutory proceedings and conduct the trial. 11 There is also the question of counsel. Cultivaust has retained South Australian counsel, who have been briefed for at least two years. If the matter were transferred to Western Australia there would be either the need to incur substantial travel expenses for those South Australian counsel or fresh Western Australian counsel would need to be briefed. In that event, the latter would need to bring themselves up to the present state of knowledge and thus there would be a waste of expenditure incurred to date in respect of South Australian counsel. 12 Financial aspects loom large in this matter. Cultivaust is a small company with an annual income of less than $200,000. Grain Pool is a substantial statutory corporation with revenues in excess of $600 million. The objective of access to justice is just as applicable in the area of commercial litigation between corporations as it is when individuals are involved. The extra expense involved in a transfer would be a substantial burden on Cultivaust and would exacerbate the existing imbalance of financial resources between these two litigants. 13 It is true that as the matter approaches trial it may be possible so to mitigate such disadvantage as has occurred to Grain Pool by retaining the case in South Australia by perhaps having some part of the trial in Western Australia and/or some part of the evidence given by video-link. These sorts of considerations are mentioned by the Full Court in Andrew and Frewin Pty Ltd v Arrow Ltd, unreported, 6 June 1990. That is true and relevant, although in present circumstances perhaps not carrying a great deal of weight because trial is a substantial way off and it is not really practicable, particularly for me, who has not had the previous management of the case, to give worthwhile intimations in any detail as to how the trial should take place. 14 For all those reasons, while Grain Pool have put forward a not insubstantial case in support of their application, taking all factors into account I am not persuaded that the order sought should be made. The motion by notice dated 29 May 2000 will be dismissed. The respondent must pay the applicants' costs of the motion. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 5 July 2000 Counsel for the Applicants: Ms M Perry Solicitor for the Applicants: Corsers Solicitors Counsel for the Respondent: Mr A J Besanko QC and Dr R J Baxter Solicitor for the Respondent: Mallesons Stephen Jacques Date of Hearing: 5 July 2000 Date of Judgment: 5 July 2000