Askew, Darren John v Seventh Granite Pty Ltd

[1995] FCA 383

IN THE FEDERAL COURT OF AUSTRALIA )No. QG 47 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:DARREN JOHN ASKEW and

ANTHONY FRANCIS ASKEW

First Applicants

AND:DELATON PTY. LTD.

Second Applicant

AND:     SEVENTH GRANITE PTY. LTD.

(A.C.N. 007 213 327)

First Respondent

AND:CHRISTOPHER WILSON (also known as

Christopher Askew and Christopher Cramp)

Second Respondent

AND:ANDREW JAMES SPEIRS

Third Respondent

AND:LISA JONES

Fourth Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              8 June, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The further conduct of this proceeding be conducted at Melbourne pursuant to s. 48 the Federal Court of Australia Act 1976 (Cth).

1. Costs are reserved to the trial judge.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 47 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:DARREN JOHN ASKEW and

ANTHONY FRANCIS ASKEW

First Applicants

AND:DELATON PTY. LTD.

Second Applicant

AND:     SEVENTH GRANITE PTY. LTD.

(A.C.N. 007 213 327)

First Respondent

AND:CHRISTOPHER WILSON (also known as

Christopher Askew and Christopher Cramp)

Second Respondent

AND:ANDREW JAMES SPEIRS

Third Respondent

AND:LISA JONES

Fourth Respondent

Coram:    Drummond J
Date:     8 June, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

This is an application by the respondents for an order that the further conduct of this proceeding be transferred to Melbourne.  The applicants' cause of action is based on alleged breaches of s. 52 the Trade Practices Act 1974 (Cth) in respect of representations made in the course of negotiations between the applicants and the principals of the respondents.  The transactions out of which the action arose all took place in Victoria where the parties all appear to have been resident at the time.  It appears that some at least of the applicants are now resident in Queensland.

The action is at a relatively early stage although voluminous material has been filed in connection with this present application which does expose on both sides of the record something of the cases each proposes to run.  The applicants, as I have said, are now living in Brisbane.  One of their witnesses, a son of theirs, is not yet a resident of Queensland but will shortly move to Queensland.  There is no other material to which my attention has been directed to suggest that the applicants will rely on any witnesses who are resident in Queensland.

The respondents, on the other hand, have put evidence before me suggesting that all their witnesses, considerable in number, who include at least one, and possibly more, expert witnesses, are resident in Melbourne.  I am not prepared to accept everything the respondents say in this regard, but commonsense suggests that there is a degree of substance in what the respondents had to say, given the nature of the case, about most, if not all, of the witnesses, other than those on the applicants' side who have moved from Melbourne to Brisbane, being in Victoria and in particular in Melbourne.  It is therefore likely to limit considerably the costs of running the trial if the trial is heard in Melbourne.

Nothing has been drawn to my attention to indicate why the matter should stay in Brisbane, apart, that is, from the inference I suppose I am invited to draw from the fact that the first two applicants and their son, a potential witness, will, by the time the matter comes to trial, all be residing in Brisbane.  It was not, however, suggested that the applicants' presence in Brisbane would present any difficulty for them if the interlocutory conduct of the action as well as the trial were to go to Melbourne.  No attempt has been made to suggest that there will be any prejudice to the applicants, if this case goes to Melbourne now where it seems to me, prima facie, it should have been commenced.  There being no other material put before me to suggest that this matter should stay in Brisbane, it seems to me that given that the cause of action arose in Victoria and that, on the material before me, a significant preponderance of witnesses will be residing in Victoria, and that there is no suggestion that the applicants will suffer any prejudice if the matter is transferred to Melbourne now, I propose to make the order sought in paragraph 1 of the notice of motion.

The application before me is based upon what I regard as fairly sparse material.  I think that it is therefore  appropriate to  reserve the costs  of today to  the

trial judge.

I certify that this and the preceding
three pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        8 June, 1995