A.M.C Investments Ltd v Willey, G.G. & D.P.

[1989] FCA 845

2UDGMENT No. .%9.5.$..,a

RESTRICTED CIRCULATION

C A T C H W O R D S

Practice and Procedure - Application for change of proper place - meaning of "proper place" - test to be applied.

Federal Court Rules 0.1, r.4; 0.10, r.1; 0.30, r.6.

National Mutual Holdings Pty Limited 6 Ors v. Sentry Corporation

6 Anor (1988) 83 ALR 434

Matter No. SG 165 of 1989

23 NOVEMBER 1989

A.M.C. INVESTMENTS LIMITED V. G R A M GEORGE WILLEY, DIANNE

PATRICIA WILLEY and LINDO PTY LTD

VON DOUSSA J.

ADELAIDE

IN THE FEDERAL COUR'F OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) NO. SG 165 of 1989

)

GENERAL DIVISION	)
B E T W E E N : A.M.C. INVESTMENTS LIMITED

Applicant

- and -

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER	VON DOUSSA J.
WHERE MADE	ADELAIDE
DATE OF ORDER	23 NOVEMBER 1989
THE COURT ORDERS THAT:

1. The proceedings be removed from the South Australian Registry and transferred to the Victorian Registry.

2. The applicant pay the costs of the notice of motion to the respondents in the proceedings.
Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

RESTRICTED CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SG 165 of 1989

)

GENERAL DIVISION	)
B E T W E E N : A.M.C. INVESTMENTS LIMITED

Applicant

- and -

GffiHAM GEORGE WILLEY,
DIANNE PATRICIA WILLEY and

LINDO PTY LTD

Respondents

EX TEMPORE REASONS FOR DECISION

CORAM: VON DOUSSA J.:

23 NOVEMBER 1989

This is an application by notice of motion for an order that the proceedings be removed from the South Australian Registry to the Victorian Registry of this Court. The proceedings were commenced in the South Australian Registry on 19

October 1989 on which day the applicant moved for an Anton Piller	order to obtain documents in the possession of the respondents
relating to commercial transactions which are the subject matter of the claim. The notice of motion for removal to the Victorian Registry was issued almost immediately after the proceedings were served upon the respondents and there can be no question of delay on their part in bringing the matter before the Court.
The applicant is a company registered in South Australia. It is a public listed company. In the proceedings it claims several millions of dollars damages alleging a contravention of s.52 of the Trade Practices Act 1974, breach of warranties contained in certain contracts, and fraud.
The statement of claim indicates that the issues between the parties are complex in the extreme and at the risk of over simplification I simply summarise the main issues involved by saying that the applicant entered first into a transaction to purchase an entity, which is now named the Mansfield Development Corporation, which was a substantial land-holder in the Mansfield district of Victoria, and shortly afterwards into a second transaction to purchase an interest in a company called Agpower which carried on a retail business in Mansfield, Victoria.
The negotiations between the applicant as purchaser and the vendor interests which are now represented by the respondents occurred in the months around June to August 1987. Initially the applicant bought a 50 per cent interest in the Mansfield Development Corporation and a like interest in Agpower but later
moved to acquire the remaining 50 per cent interest, which it did in November 1988.
The thrust of the main allegations made by the applicant is that misleading and deceptive, indeed blatantly false, statements were made about the value of the properties held by Mansfield Development Corporation and that misleading and deceptive predictions were made about the prospects of Agpower, although in the case of each entity it is said that there were both false statements about existing fact as well as false predictions.
I should add that the case not only concerns allegations regarding the representations which led to the purchase of Mansfield Development Corporation and the business. There are also allegations agalnst the respondents relating to the operation of those companies between mid-1987 and November 1988 when the applicant acquired the other 50 per cent interests. It is alleged that the respondents' conduct durlng this period added to the aplicant's losses.
It will be observed that the subject matter of the transactions, that is a company holding land and a business, was situated in Mansfield in Victoria.
The applicant A.M.C. Investments Limited argues that the proceedings were properly brought in this ReglStry and should remain in this Registry because the conduct constituting the impugned representations occurred substantially in Adelaide. It
is alleged that the representations were partly in writing and
partly oral. Those which were in writing, it is contended, were technically published in Adelalde because the wrltings were sent by electronic transfer from Melbourne to Adelaide. The representations which were oral were made by the first respondent, Willey, in part to directors and employees of the applicant in Adelaide and in part in Mansfield when representatives of the applicant were inspecting properties and

business in Mansfield.

Affidavits filed in opposition to the notice of motion assert on the applicant's behalf that there are some 9 or 10 people who would have to be called to establish the representations and they, with one exception, are all based in Adelaide. It is also said that those witnesses would have to give evidence about the reliance of the applicant upon the representations.

An issue in the proceedings would concern the falsity or error in the representations and predictions. The applicant argues, however, that that issue would largely be determined on the paper. A good deal of that paper is in Adelaide, and that which is not in Adelaide could, without undue inconvenience, be made available in Adelaide.

Finally there would be the question of damages. Again,

this would involve evidence from witnesses in Adelaide because the applicant is now conducting not only its own business but those which it purchased from the respondents, from an accounting

viewpoint, from Adelaide.

The respondents, on the other hand, in support of the notice of motion, emphasise that the real subject matter of these proceedings is based in Mansfield and that there are numerous witnesses who would have to be called on one aspect or another who are based in and around Mansfield. Indeed the number suggested in Mr Willey's affidavit is in excess of fifty.

Mr Watkins for the respondents says that a substantial issue in the proceedings will be as to whether the representations which were made were false. He says that the question of conduct whlch was emphasised by the applicant, the making of representations and predictions, is not nearly as significant as the question of falsity in the sense that clearly representations of one sort or another were made and insofar as those representations were in writing, the documents will speak for themselves. The real issue in the case, on which many witnesses will be required, will be as to the correctness or otherwise of the asserted facts and as to whether there was a reasonable basis for the predictions.

This application is made at a very early stage in the proceedings. It is not possible to form a reliable picture of the issues that will separate the parties when the matter proceeds to trial, nor, realistically, is it possible for the parties to indicate how many and what witnesses they will need to call. Whilst both sides have made estimates, they must, I

think, be treated as speculative. Mr Mansfield Q.C., who

appears for the applicant, recognises that it is too early to

form a reliable judgment on those matters. He says the matter

should therefore remain in the Adelaide Registry for the time being because there was a reasonable basis from the applicant's viewpoint to commence the proceedings here. The concerns which are expressed by the respondents about the cost and inconvenience to witnesses, to the parties, and to counsel in holding the trial here can be dealt with much closer to trial when proper estimates can be formed as to the number of witnesses and the issues, and by directing at that stage that part of the case be heard in Adelaide, part of it in Melbourne and part of it, if necessary, in Mansfield if there are a lot of witnesses there.

Clearly the Court has power under 0.30, r.6, to direct that parts of a trial take place in different locations. AS cases on the change of venue have emphasised, this is a federal court. It has to view the difficulties that are likely to arise in these types of cases from a federal perspective, and in my view, so far as possible, try to meet the convenience of everyone involved, to minimise disruption to witnesses, and to contain the costs of litigation.

However, I do not think Mr Mansfield's proposal provides a satisfactory solution to the problem. One of the points which Mr Mansfield mentioned, it seems to me, is of considerable importance. I suspect it could be fleshed out in greater detail than it has been. It is that the parties in this type of case, where the accuracy of predictions and valuations are involved, will be required to brief expert witnesses. Mr Mansfield's point was that if the case were to stay here, the respondents

would have the option of briefing experts here so as to avoid

inconvenience which would arise if expert witnesses were required

to travel to a city other than their home base to give evidence. That point illustrates that it is important that a decision be made at an early stage that the case proceed in one registry or another. When it is determined in which registry the case will proceed, that registry will ordinarily be the place of trial, unless the Court otherwise orders under 0.30, r.6. As I think Mr Mansfield's argument acknowledged, once the trial starts in the "proper place" there is no guarantee that the Court will sit in other places during the trial. However difficult it is to judge ultimately how many witnesses might be needed on one side or the other, and the like, I think the decision as to the proper registry has to be made at an early stage in the proceedings so that the parties can arrange counsel and expert witnesses in the knowledge that the "proper place" under the Rules will not change in mid stream.

In National Mutual Holdings Pty Limlted & Ors v. Sentry

Corporation & Anor (1988) 8 3 A.L.R. 4 3 4 , the Full Court of this Court stated the proper tests to be applied on an application of

this kind. At p . 4 4 2 the Court said :

"The balance of convenience is important, but its weight must vary from case to case. ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court? It cannot and should not, in our opinion, be defined more closely or precisely."

Mr Mansfield argued that the interests of justice, to use his expression, will adequately be met by leaving the case in the Adelalde Registry and in due course making speclfic directions as to where aspects of the trial will take place. I have already to some extent addressed this argument. In my view the Full Court when saying that the interests of all parties and the ends of justice in the determination of the issues between them are to be taken into account had in mind a broader notion of the interests of justice than Mr Mansfield's argument advanced. As this case very much concerns holdings of real estate and the operations of a business in Victoria it has a distinct Victorian character about it. The fortunes of the companies acquired by the applicant did not turn out as the applicant anticipated. Apparently the applicant contends that the poorer than expected fortunes of the companies in part provides the proof of falsity of the representations. Whether this is so will require a close examination of the way in which Mansfield Development Corporation and Agpower were conducted in Mansfield, and consideration of the various factors which have influenced the fortunes of land and businesses in that area. Those are matters that in all probability will be best known to people who reside in and around Mansfield. That consideration adds to the Victorian character of the case.

If one were merely to do a head count, whilst there are

10 or 11 witnesses according to the applicant's affidavit based

in South Australia there are many more based in and around Mansfield as well as others elsewhere in Victoria. However, I

think it is not appropriate simply to do a head count.	Of more
namely the convenience of people who are likely to be called as	importance, in my view, is the factor emphasised by Mr Watkins,
witnesses who are not themselves directly interested in the proceedings, whether as parties or as employees of the parties. In assessing convenience I think the fact that employees or directors of parties would be required to travel to another place is less important than the fact that people, who have no direct interest in the proceedings, like professional people who are called as experts, or members of the public, would be required to travel to another place there to await their turn to give evidedce. Many of the witnesses who the respondents propose to
call fall into the latter category. Their convenience, I think,
is an important matter.
As to the convenience of the parties, this case, like many of these cases, is one where either party is going to be inconvenienced, perhaps to a considerable extent, by having the proceedings conducted in the home state registry of the other party. However, I think the Victorian character of this case provides strong reason to favour the interests of the respondents in having the proceedings conducted in Victoria. when one looks at the interests of all the other people who might be involved as witnesses in these proceedings, particularly those who might be called on the question of the accuracy of the representations and predictions that were made about matters pertaining to Mansfield, the ends of justice would best be achieved by having the matter heard, for the most part at least, in Victoria.

Considering the matters identified by the Full Court, I

am left with a very strong impression that these procedings will

be most suitably continued and conducted in Victoria.

When the notlce of motion for the Anton Plller order was first listed before me, my immediate reaction, which I expressed to counsel for the applicant, was that these proceedings should be conducted out of the Victorian Registry. That Registry was much closer to Mansfield and to the respondents, and therefore

more accessible to handle expeditiously the issues that could arise on the Anton Piller order. I was persuaded at the time that the matter could proceed in Adelaide and I heard the notice of motion. Upon reflection, and in light of what has since happened, I think I was in error in being so persuaded. T should have directed that the action be removed to the Victorian Registry at the outset.

There will be an order in terms of para.1 of the notice of motion. Order that the A.M.C. Investments Limited pay the costs of the notice of motion to the first, second and third respondents in the proceedings.

I certify that this and

a true copy of the Reasons the 9 preceding pages are

for Decision of Mr Justice

von Doussa.

Associate: que~eA B I ~ s I ~ ~

Dated: 23 C' f & ~ ~ n ~ b e < iqs?

Counsel for the Applicant:	Mr. J.R. Mansfield Q.C.
Solicitors for the Applicant:	Thomson, Simmons & Co.
Counsel for the Respondents:	Mr. G. Watkins
Solicitors for the Respondents:	Abbott, Tout, Russell Kennedy
Date of Hearing:	23 November 1989