FEDERAL COURT OF AUSTRALIA Kijurina v Blignaut [2015] FCA 1518 Citation: Kijurina v Blignaut [2015] FCA 1518 Parties: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ASA CONSULTANTS PTY LTD (IN LIQUIDATION) AND ANOTHER (AS PER THE SCHEDULE) v JAN LUCAS CORNEL BLIGNAUT AND OTHERS (AS PER THE SCHEDULE) File number: NSD 1283 of 2014 Judge: RARES J Date of judgment: 9 December 2015 Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155 Date of hearing: 9 December 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Plaintiff: Mr C Freeman Solicitor for the Plaintiff: Nelson McKinnon Lawyers Counsel for the Second Defendant: The Second Defendant appeared in person IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1283 of 2014 BETWEEN: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ASA CONSULTANTS PTY LTD (IN LIQUIDATION) AND ANOTHER (AS PER THE SCHEDULE) Plaintiff AND: JAN LUCAS CORNEL BLIGNAUT AND OTHERS (AS PER THE SCHEDULE) Defendant JUDGE: RARES J DATE OF ORDER: 9 DECEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application filed by the second defendant on 4 December 2015 be dismissed. 2. The second defendant pay the plaintiffs' costs of and incidental to the interlocutory application. 3. On or before 22 January 2016, the second defendant file and serve any interlocutory application and affidavit in support seeking a variation to the orders of Rares J of 8 May 2015 with respect to service by the first, second and fourth defendants of outlines of evidence for all lay witnesses and any expert reports, to be returnable on 5 February 2016 for hearing. 4. On or before 25 October 2016, the plaintiffs and defendants cooperate to prepare a bundle of documents proposed to be tendered, arranged in chronological order and paginated, containing only one copy of each relevant document and no duplicates (unless the duplicate is also relevant), and ensuring that all documents are legible. 5. The plaintiffs provide two copies of the bundle to the Associate to Rares J on or before 25 November 2016. 6. On or before 7 November 2016, the plaintiffs file and serve an outline of written opening submissions, limited to 10 pages. 7. On or before 21 November 2016, the defendants file and serve an outline of written opening submissions, limited to 10 pages. 8. On or before 24 November 2016, the plaintiffs file and serve any submissions in reply, limited to five pages. 9. On or before 7 November 2016, the parties file an agreed statement of issues, limited to 2 pages, and an agreed chronology. 10. The matter be listed for a five day hearing, to commence on 28 November 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1283 of 2014 BETWEEN: BRENT TREVOR-ALEX KIJURINA AND RICHARD ALBARRAN IN THEIR CAPACITY AS LIQUIDATORS OF ASA CONSULTANTS PTY LTD (IN LIQUIDATION) AND ANOTHER (AS PER THE SCHEDULE) Plaintiff AND: JAN LUCAS CORNEL BLIGNAUT AND OTHERS (AS PER THE SCHEDULE) Defendant JUDGE: RARES J DATE: 9 DECEMBER 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The second defendant, Mrs Shirley Richardson, has applied for a change of venue under s 48 of the Federal Court of Australia Act 1976 (Cth) from the New South Wales District Registry to the Western Australian District Registry, because she lives in Western Australia and is aged 72. Mrs Richardson says that she is impecunious and cannot finance travel and accommodation to attend the trial that had been fixed for hearing for five days on 30 May 2016. On 6 November 2015, I made orders timetabling the matter to be ready for that hearing. Mrs Richardson subsequently learnt that she had to have a major reconstruction of her right shoulder that would substantially incapacitate her from doing any real preparation for the hearing that is to take place. Mrs Richardson is right handed. 2 The liquidators, who are the plaintiffs, accept that position and have recognised that the trial date should be vacated to accommodate Mrs Richardson's condition. Mrs Richardson also has indicated that, despite orders that I made on 8 May 2015 (when she was represented) that all of the defendants file and serve expert reports and outlines of evidence of all lay witnesses that they proposed to call at the hearing on or before 10 July 2015, she wishes now to call at least three additional people, including her business' former accountant, Warren Kruger, to deal with solvency questions. No outlines of evidence or detail of what those witnesses are going to say have been served or provided. The only outline of evidence that was served in accordance with my orders was that of Mrs Richardson herself. 3 I will direct that any application to vary orders 2 and 3 made on 8 May 2015 be made by an interlocutory application, that Mrs Richardson must file and serve on or before 22 January 2016. That will be returnable for hearing on 5 February 2016 and she must file, on or before 22 January 2016, an affidavit verifying that she has by that date served the outlines and any expert reports of witnesses whom she proposes to call if the Court were to vary the orders previously made for the provision of evidence in preparation for the hearing. I will vacate the trial date and make a new timetable that will enable the hearing to take place on 28 November 2016. 4 The liquidators have offered an undertaking that they will pay for the airfare to, and accommodation in, Sydney of Mrs Richardson if the venue for trial is not changed. Mrs Richardson has said that she feels very uncomfortable in travelling to Sydney at her age and that she also feels uncomfortable doing so alone and in a strange city. Those feelings are matters which are very human and real to Mrs Richardson, but the other consideration to be balanced in the scales is that the liquidators are substantively without any funds in hand from the company and assert that they have not received proper cooperation from those formerly associated with it, who are the defendants, in the provision among other things, of the books and records of the company, in order to be able to conduct the appropriate steps to bring the winding up to a conclusion by realising the assets available to the company against, among others, its former officers and the third and fourth defendants, who appear to have conducted what looks like a similar business to that of the company after it went into liquidation. 5 The test for a change of venue was authoritatively identified in National Mutual Holdings Pty Limited v The Sentry Corporation (1988) 19 FCR 155 at 162 by Bowen CJ, Woodward and Lockhart JJ, namely, that the venue should be where the case can be conducted or continued most suitably, bearing in mind the interests of all of the parties and the ends of justice in the determination of the issues between them and the most efficient administration of the Court. 6 On the material presently before me, I am not satisfied that the venue should be changed from Sydney. The liquidators are based here and they have done considerable work here. The only current witness whose evidence suggests that a suitable venue would be the Western Australian Registry in Perth is Mrs Richardson herself. The liquidators' offer to pay for her airfare and accommodation will mean that, although she is impecunious and in receipt of an aged pension, she will be able to attend the trial and defend her interests in it. 7 The liquidators have provided Mrs Richardson, I have been told, with a USB stick that contains the whole of the documents, in an electronic format, that have been filed in the Court in the proceedings. That will enable Mrs Richardson to have access to materials to enable her to prepare properly for the hearing that her former solicitors are currently exercising a lien over and thus to which she is prevented from having direct access. 8 While Mrs Richardson's personal circumstances are a matter of weight, I am satisfied that the overall interests of justice, on the material currently before me, lean in favour of retaining the venue in Sydney. 9 For those reasons, I will refuse the interlocutory application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 2 February 2016 SCHEDULE NSD 1283 of 2014 BETWEEN: ASA CONSULTANTS PTY LTD (IN LIQUIDATION) ACN 086 117 900 Second Applicant AND: SHIRLEY IRENE RICHARDSON Second Respondent AMALGAMATED SOLUTIONS AUSTRALIA PTY LTD ACN 162 369 986 Third Respondent AUSTRALIA –MIGRATION.COM PTY LTD ACN 089 952 312 Fourth Respondent HUMBERTO JOSE HERNACHE SANCHEZ Fifth Respondent