FEDERAL COURT OF AUSTRALIA Lifeplan Australia Friendly Society Ltd v Woff [2015] FCA 290 Citation: Lifeplan Australia Friendly Society Ltd v Woff [2015] FCA 290 Parties: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 and FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 v NOEL WOFF, RICHARD CORBY, FUNERAL PLANNING AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 050 727 015 and ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED File number: SAD 99 of 2012 Judge: BESANKO J Date of judgment: 31 March 2015 Catchwords: PRACTICE AND PROCEDURE – application for trial to be conducted in Melbourne – where first and second respondents would incur additional disbursements if trial conducted in Adelaide – where application made within months of the trial commencement date – Federal Court of Australia Act 1976 (Cth) s 48(1) – Federal Court Rules 2011 (Cth) r 2.02 Legislation: Corporations Act 2001 (Cth) s 471B Federal Court of Australia Act 1976 (Cth) s 48(1) Federal Court Rules 2011 (Cth) rr 2.02, 5.04 Item 33 Cases cited: Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 906 Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 1092 National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155 Date of hearing: Heard on the papers Date of submissions: 27 February 2015 (Applicants) 5 March 2015 (First and Second Respondents) 4 March 2015 (Fourth Respondent) Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicants: Mr P W Collinson QC with Mr M Douglas Solicitor for the Applicants: Ashurst Australia Counsel for the First and Second Respondents: Mr K Esser Solicitor for the First and Second Respondents: Esser Legal Counsel for the Fourth Respondent: Mr R C Macaw QC with Mr D C Gration Solicitor for the Fourth Respondent: TurksLegal IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 99 of 2012 BETWEEN: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 First Applicant FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 Second Applicant AND: NOEL WOFF First Respondent RICHARD CORBY Second Respondent FUNERAL PLANNING AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 050 727 015 Third Respondent ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED Fourth Respondent JUDGE: BESANKO J DATE OF ORDER: 31 March 2015 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application of the first and second respondents dated 12 February 2015 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 99 of 2012 BETWEEN: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 First Applicant FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 Second Applicant AND: NOEL WOFF First Respondent RICHARD CORBY Second Respondent FUNERAL PLANNING AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 050 727 015 Third Respondent ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED Fourth Respondent JUDGE: BESANKO J DATE: 31 march 2015 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This proceeding was commenced on 14 May 2012. The applicants are Lifeplan Australia Friendly Society Ltd and Funeral Plan Management Pty Ltd and, at the time the proceeding was commenced, the respondents were Mr Noel Woff, Mr Richard Corby, and Funeral Planning Australia Pty Ltd. A trial date was allocated for the hearing of the proceeding, but that date was subsequently vacated. On 7 June 2013, the Ancient Order of Foresters in Victoria Friendly Society Limited was joined as a respondent to the proceeding. 2 On 12 June 2013, the Supreme Court of Victoria made an order of the winding up of Funeral Planning Australia Pty Ltd. The applicants sought leave to proceed against it under s 471B of the Corporations Act 2001 (Cth). 3 On 11 July 2013, the fourth respondent made an application for an order that the proceeding be transferred from the South Australia District Registry to the Victoria District Registry of the Court. The fourth respondent relied on s 48(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") and r 2.02 of the Federal Court Rules 2011 (Cth) ("the Rules"). The first and second respondents supported the fourth respondent's application. The application was opposed by the applicants. On 6 September 2013, I made an order that the fourth respondent's application be dismissed: Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 906. 4 On 22 October 2013, I made an order that the applicants have leave to proceed with the proceeding against the third respondent pursuant to s 471B of the Corporations Act 2001 (Cth) up to the entry of judgment: Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 1092. The third respondent has not taken an active part in the proceeding. 5 On 29 October 2014, I made a number of directions with a view to progressing the proceeding to trial. In addition, I listed the proceeding for trial commencing on Monday, 1 June 2015 with 10 days set aside. At a directions hearing on 2 February 2015, the legal representative for the first and second respondents informed me that those respondents were considering an application for an order which would result in evidence in the trial being taken in Melbourne rather than in Adelaide. 6 On 13 February 2015, the first and second respondents issued an interlocutory application in which they sought the following orders, relevantly: 1. That pursuant to s. 48 (1) of the Federal Court Act 1976 part of these proceedings - namely the taking of evidence at trial – scheduled to commence in Adelaide as a 10 day matter on Monday 1 June 2015 (as per Order 16 of Besanko J made on 29 October 2014) instead be conducted at Melbourne. 2. That Order 16 of Besanko J made on 29 October 2014 be amended to reflect that the trial of these proceedings will take place in Melbourne. 7 The first and second respondents' application is supported by three affidavits of their solicitor dated 12 February 2015, 16 February 2015, and 5 March 2015 respectively. The applicants object to various parts of this affidavit evidence. The fourth respondent supports the application made by the first and second respondents and, in fact, has filed an affidavit of the non-executive chairman of its board. That affidavit deals with one matter. The deponent of the affidavit notes that one consequence of the trial being held in Melbourne rather than in Adelaide would be that the Commonwealth of Australia may incur additional costs by reason of the need for the trial judge and other court staff to travel to Melbourne and be accommodated during the trial. The deponent states that if the Court sees fit to make it a condition of granting the first and second respondents' application, the fourth respondent is willing to undertake to indemnify the Commonwealth against travel and accommodation costs, including the costs of meals incurred by the Commonwealth by reason of the trial taking place in Melbourne rather than Adelaide. I would not contemplate making an order subject to such a condition and it need not be further noticed. The applicants rely on an affidavit sworn by their solicitor on 19 February 2015. The applicants also seek to rely on an affidavit sworn by their solicitor on 9 August 2013, and their submissions in opposition to the fourth respondent's application to transfer the proceeding to the Victoria District Registry. 8 The basis of the application made by the first and second respondents is explained in their affidavit evidence. They state that they are not seeking a change of venue "per se". What they seek is to have the trial heard in Melbourne rather than in Adelaide. Their application envisages that I would remain the docket judge and hear the trial. They claim that the costs to them in terms of accommodation, airfares, other travel expenses, witness expenses, and interstate office accommodation will be that much greater if the trial is held in Adelaide rather than in Melbourne. They purport to make the same claim on behalf of the fourth respondent, but I do not think that they are in a position to do that. That might be an inference which I am able to draw, but I do not think that I would reach that conclusion based on evidence of the first and second respondents' solicitor when the fourth respondent is a party to the proceeding and has had the opportunity to put forward its own evidence. 9 The first and second respondents, through their solicitor, produced a schedule showing the additional disbursements they will incur if the trial is held in Adelaide rather than in Melbourne. As I have said, there were a number of objections by the applicants to the evidence adduced by the first and second respondents, but I do not need to deal seriatim with these objections. It is sufficient for me to make the general observations that the affidavits contain a number of submissions rather than statements of fact, details of the quotes for fully serviced office accommodation are not provided, some of the first and second respondents' Melbourne-based representatives are not identified, and the costs of accommodation, airfares and other expenses are estimates apparently made by more than one person. The other point I note is that the affidavits are light on detail as to the Melbourne-based barrister and expert. There is no indication as to when they were briefed or retained, and whether consideration was given to briefing or retaining an Adelaide-based counsel or expert. Despite these failings in the evidence, I accept, as a general proposition, that the first and second respondents will incur additional disbursements if the trial is held in Adelaide rather than in Melbourne, and that that is also likely to be the case for the fourth respondent. However, on the evidence it is difficult to quantify that additional cost. 10 The applicants submitted that the application by the first and second respondents seeks only the taking of evidence in Melbourne. That is correct, but I think as developed, the substance of their application – an order that the trial, including opening and closing submissions take place in Melbourne – is clear. 11 Neither party addressed the issue of whether the type of order sought by the first and second respondents falls within the terms of s 48(1) of the Act. It is not the standard order made under s 48(1) of the Act which usually involves the proceeding being transferred to another place which then becomes the proper place (see r 2.02 of the Rules). It may be that the application is more appropriately seen as an order as to the place of hearing (see r 5.04 Item 33 of the Rules). I do not need to reach a firm view about these matters because the existence of the Court's power to order that the trial take place in Melbourne is not challenged. 12 The matters advanced by the first and second respondents are at best for them relevant to the balance of convenience. Even if raised at an appropriate time, the balance of convenience is not decisive: National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155 at 162. However, this application is made well past an appropriate time, and the matters raised by the first and second respondents cannot lead to a change in the place of trial. I would add that, in view of the length of time this proceeding has been in this Registry and my rejection of the fourth respondent's transfer application, I would not have been disposed to accede to the first and second respondents' application even if it had not been made shortly prior to the hearing. 13 The order I will make is that the application of the first and second respondents dated 12 February 2015 be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 March 2015