FEDERAL COURT OF AUSTRALIA Parlei Pty Limited v Rowe [2010] FCA 1111 Citation: Parlei Pty Limited v Rowe [2010] FCA 1111 Parties: PARLEI PTY LIMITED (ACN 89 129 675 565) v BRIAN ROWE File number: NSD 619 of 2010 Judge: RARES J Date of judgment: 8 October 2010 Date of hearing: 8 October 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 Counsel for the Plaintiff: P King Solicitor for the Plaintiff: Hicksons Counsel for the Defendant: N Bilinsky Solicitor for the Defendant: Wellners Lawyers IN THE FEDERAL COURT OF AUSTRALIA IN ADMIRALTY NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 619 of 2010 BETWEEN: PARLEI PTY LIMITED (ACN 89 129 675 565) Plaintiff AND: BRIAN ROWE Defendant JUDGE: RARES J DATE OF ORDER: 8 OCTOBER 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The defendant file and serve any amended defence on or before 15 October 2010. 2. The defendant serve outlines of the evidence of his witnesses in chief and any expert reports, together with all documents on which he proposes to rely on or before 15 October 2010. 3. The plaintiff serve outlines of the evidence of its witnesses in chief and any expert reports together with all documents on which it proposes to rely on or before 12 November 2010. 4. The proceedings be conducted from the Queensland District Registry of the Federal Court of Australia. 5. The matter be stood over to 19 November 2010 before Dowsett J in Brisbane for further directions together with the defendant's motion filed on 7 October 2010. 6. Liberty be granted to apply on 3 days notice. 7. The defendant pay the plaintiff's costs of and occasioned by the relisting and hearing on 8 October 2010. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA IN ADMIRALTY NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 619 of 2010 BETWEEN: PARLEI PTY LIMITED (ACN 89 129 675 565) Plaintiff AND: BRIAN ROWE Defendant JUDGE: RARES J DATE: 8 OCTOBER 2010 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This claim involves the charter on demise of a pleasure vessel "Baracuma" in October 2009. The vessel, a catamaran, was chartered by Parlei Pty Limited, the plaintiff, to Brian Rowe, the defendant. The statement of claim alleged that the charter occurred on 11 October 2009 in Queensland and that it was a condition of the charterparty that she be returned to Parlei at Toowong, near Brisbane, on 14 October 2009. The statement of claim alleged that Mr Rowe took possession and control of the vessel with three crew on 11 October 2009. It is common ground that the vessel was left at a resort near Moreton Bay in Queensland waters on 12 October 2009. 2 When the proceedings first came before me on 30 July 2010, I inquired of Parlei what connection the proceedings had with the New South Wales District Registry of the Court. Parlei's solicitor then informed me that it had some witnesses in Queensland, but that one of its directors was in Sydney and its insurer's office was also located here. The solicitor then appearing as a town agent for Mr Rowe had not been properly instructed about the proceedings, despite the fact that they were being conducted in this Court and the requirements of Pt VB of the Federal Court of Australia Act 1976 (Cth). He was not in a position to assist the Court in great detail in relation to what the facts underlying his client's defence were. It is not an excuse for a legal practitioner appearing as agent for another practitioner on any directions hearing, and particularly on the date for first directions of any proceeding commenced in the Court, to fail to be in a position to assist the Court with a proper and detailed knowledge of the matter with which the Court is being asked to deal. 3 In essence, Mr Rowe's defence asserted that the vessel was unseaworthy or was not otherwise in good order and condition when she was delivered to him because of one or more of the following: · the toilet overflowed and galley fumes from the toilet were overwhelming; · her mainsail reefing lines and steerage gear did not work properly; · her starboard motor made significant noise and vibrated excessively. 4 Obviously the proof of those matters would require, among other things, Mr Rowe and witnesses, who were familiar with the vessel, both in his and Parlei's camps to give evidence. The likelihood that any of those persons would be doing so from Sydney rather than Brisbane or near to Brisbane is, in my opinion, remote. 5 Parlei alleged that as a result of the vessel being left at anchor near Moreton Bay on 12 October 2009, she came adrift and sustained further damage. Mr Rowe has recently admitted quantum of the claim for total repair costs, salvage and wreck removal expenses in the order of $160,000. Thus, for the purposes of determining any responsibility he may have for the damage the real issues between the parties will involve the determination of the precise terms on which the charter was made, whether there was any variation to that charter, the state of the vessel at the time of the charter, her state and the circumstances at the time at which Mr Rowe left her at anchor. 6 I made first directions on 30 July 2010, and set a timetable, intending that the matter come back on 22 October 2010 to set a date for hearing. Mr Rowe has recently changed solicitors. His new solicitors have indicated that they wish to amend his defence and to seek an extension of time to 15 October 2010 to serve outlines of evidence of his witnesses in-chief, together with expert reports. Those steps should have been completed by 17 September 2010. Parlei has caused the matter to be relisted because of Mr Rowe's defaults in compliance with the existing directions. The parties have agreed about the nature of the procedural directions that should now be made. 7 Yesterday, Mr Rowe filed a motion supported by an affidavit of his new solicitor seeking an order under s 32AB of the Federal Court of Australia Act for transfer of the proceedings from this Court to the Federal Magistrates Court at Brisbane. That was returnable before me for directions only this morning. I again raised with counsel for Parlei on what basis the proceedings were maintained here. I enquired why I should not make an order under s 48 of the Act that the proceeding be conducted from the Queensland District Registry of this Court. I suggested that the convening judge there could deal with Mr Rowe's notice of motion on the next return date for directions, and make any further procedural directions, and fix a hearing date or order that the matter be dealt with, if considered appropriate, by the Federal Magistrates Court. 8 Parlei argued that I should not contemplate such a transfer under s 48, at this stage, because the proceedings had already been commenced here. It emphasised that I had raised the matter of venue on the first directions hearing, and Mr Rowe had not applied for a change. Next, Parlei argued that it would be more appropriate to deal with any transfer under s 48 together with Mr Rowe's motion, which did not seek a transfer within this Court, but to the Federal Magistrates Court. It also relied on the fact that its solicitors were in Sydney and had conducted the matter here. 9 The principles applicable to making an order under s 48 of the Act and O 30 r 6 of the Federal Court Rules were authoritatively stated by Bowen CJ, Woodward and Lockhart JJ in National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155 particularly at 162. The Full Court observed that the purpose of the provision in O 30 r 6, that the place of trial of a proceeding is to be the proper place, was to ensure the orderly and efficient conduct of the Court's business by requiring documents to be filed in the registry where the proceeding was conducted. They said that the power conferred by s 48 was wholly unfettered and should be exercised flexibly, having regard to the circumstances of the particular case. They declined to lay down or circumscribe the exercise of that general power by imposing inflexible rules or inelastic constraints. Importantly, their Honours noted that the power conferred by s 48 recognised the national character of the Court. That character is re-emphasised by the Court's adoption of a national Admiralty and maritime arrangement for the conduct of business within the jurisdiction vested in the Court pursuant to s 76(iii) of the Constitution. Each District Registry of the Court has a Registry convening judge and at least two judges resident in that District for the purposes of dealing with Admiralty and maritime matters. The national character of the Court enables it to dispose of business in Admiralty and maritime matters efficiently, utilising the availability of all of the judges who are involved in the national Admiralty and maritime arrangement that the Court has adopted. In such matters it is frequently the case that one or more of the parties is represented by lawyers who are not resident in the same city as the lawyers for another party. The Court can conduct directions and other hearings conveniently by video or audio-link as need be. 10 In this matter the pleadings do not reveal any relevant connection with, or which suggest that the interests of justice require, a hearing to be held in the New South Wales District Registry of the Court. On the contrary, they reveal every connection to the Queensland District Registry. All of the witnesses of fact are likely to be found in or close to Brisbane and, probably, the experts will be there too. The proceedings do not involve a large sum of money, but may involve matters of some complexity and difficulty which may make it desirable for the matter to remain in this Court. At the moment there is nothing before me one way or the other, by which I can make an assessment as to Mr Rowe's motion for transfer to the Federal Magistrates Court, but in any event, that motion is not for hearing now. 11 In all the circumstances, having regard to the matters which I have mentioned, I am of opinion that the proceedings should be conducted from the Queensland District Registry. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 13 October 2010