Seamus E. Byrne's - In Pursuit of Relevance

Mortimer v Opes Prime Stockbroking Limited (Administrators Appointed) (In Liquidation) [2009] FCA 227 (13 March 2009).

The recent decision of McKerracher J involved an application to transfer a proceeding related to the Opes Prime collapse from the Western Australia District Registry to the Victorian District Registry of the Federal Court.

The Court has the power to transfer a proceeding under section 48 of the Federal Court of Australia Act 1976 (Cth).

At [24-25], His Honour noted that even during an application to transfer the proceeding, the parties were not prevented from taking proactive steps to devise and agree upon a discovery plan, including document management protocol, in accordance with the Court's revised Practice Note 17:

[24] If the proceedings are transferred to the Victoria District Registry it does not necessarily follow that the trial or the entirety of the trial would be conducted there. It is possible that part of the trial be conducted in Perth, and part of the trial be conducted in Melbourne, or elsewhere. The real issue is how the proceeding can most efficiently be managed between now and trial (as well as at trial) given the substantial commonality of issues between this and other litigation presently and/or likely to be transferred to the Victoria District Registry.

[25] The number of and location at which there are documents is evenly balanced. Both the applicants and ANZ have adduced evidence that they have significant numbers of documents relevant to the proceedings located in each of Western Australia and Victoria. As the applicants observed, however, there is no reason on the evidence as to why the parties to the proceeding cannot agree on an electronic discovery protocol in accordance with Practice Note No 17.