Acryline Paints and Membrane Pty Ltd v Brook, R.

[1990] FCA 563

JUDGMENT No. ..gk$-./L,

IN THE FEDERAL COURT	)	LIMITED DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1	No WAG 79 of 1990
B E T W E E N :	ACRYLINE PAINTS & MEMBRANE PTY LTD

Applicant

and

RAYMOND BROOKS

First Respondent

and

INTERNATIONATA LIQUID

PLASTICS PTY LTD

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.

DATE OF ORDER:	17 OCTOBER 1990
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1. The respondents' motion of 31 July 1990 is dismissed.

in Order 36 of the Federal Court Rules.

1. The respondents pay the applicant's costs of the motion.

   Note: Settlement and entry of orders is dealt with

IN THE FEDERAL COURT	)
OF AUSTRALIA
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 79 of 1990
B E T W E E N :	ACRYLINE PAINTS h MEMBRANE PTY LTD

Applicant

and

RAYMOND BROOKS

First Respondent

and

INTERNATIONAL LIQUID

PLASTICS PTY LTD

Second Respondent

CORAM:  FRENCH J.
17 OCTOBER 1990

By a motion filed on 31 July 1990, the first respondent moved for the transfer of these proceedings to the Sydney Registry of the Court. That I take to have been the substance of his motion, although in terms it sought an order for the hearing of the action to be transferred to Sydney. In	support of the motion there was an affidavit sworn by the	first respondent on 31 July. In it he indicated that he
proposed to call "up to 40 witnesses" and submitted that on the balance of convenience the matter should be heard in Sydney. He also relied upon c1.20 of the sale agreement dated 8 August 1988 pleaded in the statement of claim. That clause provided for the law of the agreement to be the law of the State of New South Wales and any action or proceeding by or between the parties or any of them to be instituted and conducted in a court of appropriate jurisdiction at Sydney in that State and any of the parties to the agreement being parties to that action would submit to the jurisdiction of that Court.
At the hearing of the applicant's claim for interlocutory injunctive relief on 1 August, the first respondent represented himself. He also appeared when judgment was given on 2 August. And on that date the following directions were made:

"1. Resuondents are to file and serve anv ~ - -

defence and counterclaim on or before

22-8-90.

2.   Applicant to file and serve reply to defence and counterclaim by 5-9-90.

3.   Request for particulars of any pleading to be delivered by 12-9-90 and answered by 26-9-90.

4.   The parties to file any further affidavit in relation to the motion to transfer the proceedings on or before 3-10-90.

5. The parties to file and serve any written submissions in relation to the motion on or

before 10-10-90.

6.   The motion will be heard and determined on the written material unless otherwise ordered on

17-10-90 at 2.15 pm.

7.    Costs of the directions in the cause."

No further steps have been taken in the proceedings by either party. In particular, no defence has been filed by the respondents. Nor have any further affidavits or written submissions been lodged in relation to the motion. Pleadings are therefore not closed and the issues not defined between the parties.

The evidence adduced in support of the motion was not elaborated by any explanation of the "up to 40 witnesses" to be called by the first respondent. Nor can I come to any conclusion on the pleadings as to the venue most suited for the continuance of the proceedings. In the circumstances I see no reason to disturb the applicant's choice of venue and the motion will be dismissed. It will be dismissed both on the transfer question and in relation to a claim for security for costs which was not pursued.

I certify that this and the preceding
two (2) pages are a true copy of the
Reasons for Judgment of his Honour

Justice French.

Associate : & * ~ c / ~ n ~ a ~ d , ~ Date : /7 t!l&8.Gv /??a

Counsel for the Applicant: Mr M. Odes

Solicitors for the Applicant: Parker & Parker

Mr R. Brooks appeared on his own behalf and on behalf of the

Second Respondent.

Date of Hearing:  2 August 1990

Date of Judgment: 17 October 1990