Australian Competition and Consumer Commission v Terania Pty Ltd [2007] FCA 1074

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Terania Pty Ltd [2007] FCA 1074 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TERANIA PTY LTD AND AUSTRALIAN RUG EXPOS PTY LTD NTD 7 OF 2007 MANSFIELD J

19 JULY 2007

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD 7 OF 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: TERANIA PTY LTD

First Respondent

AUSTRALIAN RUG EXPOS PTY LTD

Second Respondent

JUDGE: MANSFIELD J DATE OF ORDER: 19 JULY 2007

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. Application to transfer proceedings to South Australian District Registry refused. 2. Matter be referred to a Registrar for mediation as soon as is reasonably convenient. 3. Registrar to report as to outcome of the mediation by 30 August 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD 7 OF 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: TERANIA PTY LTD

First Respondent

AUSTRALIAN RUG EXPOS PTY LTD

Second Respondent

JUDGE: MANSFIELD J

DATE: 19 JULY 2007

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The respondents have applied by motion of 19 June 2007 for two orders. (For convenience and consistency, I will call the applicants on the motion "the respondents", as is their status in the proceeding generally, and the respondent to the motion "the applicant" as is its status in the proceeding generally). The first is that the proceeding be transferred from the Northern Territory District Registry to the South Australia District Registry of the Court. The second is that the proceeding be referred to a mediator for the purpose of mediation. I will deal with those applications separately. 2 The principles upon which the Court should consider the first of those applications are quite well established. 3 Section 48 of the Federal Court of Australia Act 1976 (Cth) permits the Court or a Judge to direct that the proceeding, or a part of the proceeding be conducted or continued at a place other than the place at which they have been instituted. Order 10 r 1(2)(f) of the Federal Court Rules 1979 (Cth) permits the Court to direct the proceeding to be transferred from one Registry at which it has been commenced to a different Registry. To make such an order the Court must be satisfied after considering all relevant matters that there is a sound reason to direct that the proceeding be conducted or continued elsewhere. See National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155. That decision also indicated some of the considerations which will generally be relevant in such an application. 4 In this matter the starting point is to note that these proceedings were commenced in the Northern Territory District Registry. The alleged conduct said to contravene the Trade Practices Act 1974 (Cth) (the Act), involves five sales of rugs and manchester products held in Darwin and one sale of rugs and manchester products held in Canberra. There were no sales alleged to have taken place in South Australia. It is not suggested that the proceedings should be transferred to the ACT District Registry and it is plain that the cause of action, if there is one, principally arose in the Northern Territory and that was an appropriate place in which the proceedings should have been commenced - as Sentry 19 FCR 155 then asks rhetorically: why should it be changed? 5 The parties have respectively drawn to the Court's attention a number of considerations to which I will make brief reference. It is on the evidence possible that the matter will proceed to hearing and, in that event, that witnesses will be called by the applicant including witnesses from Darwin, Melbourne and in one instance, New Zealand. From the point of view of the respondent the witnesses are likely to come from Adelaide. 6 At present it is not possible to assess with any degree of confidence which of those witnesses are more likely to give evidence, or to give evidence which is likely to be contested. That is because I have been told very little about what their proposed evidence will be, or the extent to which it is likely to be contested. I am not critical of that fact because, as counsel for the respondents acknowledged, an application for transfer should be brought without delay. I accept that this application has been brought within an appropriate time frame. However, it leaves me in the position where I do not have a firm view, having regard to the nature of the allegations and the respective balance of convenience of the potential witnesses or the costs of them giving evidence in one place or another, that the proceedings would be better conducted in Darwin or in Adelaide.