Askew, Darren John v Seventh Granite Pty Ltd

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:

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

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

The case of Askew, Darren John v Seventh Granite Pty Ltd involved the applicants, Darren John Askew and Anthony Francis Askew, along with Delation Pty Ltd, pursuing claims against the respondents, Seventh Granite Pty Ltd, Christopher Wilson, Andrew James Speirs, and Lisa Jones. The applicants sought to transfer the case from Brisbane to Melbourne, citing convenience and the location of the alleged breaches of the Trade Practices Act 1974. The applicants' cause of action arose from alleged breaches during negotiations that occurred in Victoria. The matter was at an early stage, with extensive material filed for the respondents' application. The applicants, now residing in Brisbane, had one son who would soon join them there, while the respondents claimed that most, if not all, of their witnesses were based in Melbourne, including experts. Drummond J considered that, given the location of the alleged breaches and the number of witnesses in Victoria, transferring the case to Melbourne would likely reduce costs and there was no evidence suggesting prejudice to the applicants if the trial proceeded in Melbourne. Drummond J proposed to make the order sought in paragraph 1 of the notice of motion and reserved costs to the trial judge.

Drummond J was required to decide whether to transfer the case from Brisbane to Melbourne, considering the location of the alleged breaches, the residency of the parties and witnesses, and the potential for cost savings and convenience. The primary legal issue was whether the balance of convenience favoured transferring the case to Melbourne, given the nature of the case and the witnesses' locations. Drummond J also had to assess whether the transfer would cause any prejudice to the applicants and whether there were any compelling reasons to keep the case in Brisbane.

Drummond J concluded that the case should be transferred to Melbourne based on the preponderance of evidence showing that most witnesses were resident in Victoria, the location of the alleged breaches, and the lack of prejudice to the applicants if the case proceeded in Melbourne. Drummond J accepted that while the applicants were now residing in Brisbane, there was no evidence suggesting that this would cause them difficulty if the trial went to Melbourne. Drummond J also noted that the respondents had provided sparse material to support their application, and thus it was appropriate to reserve the costs of the hearing to the trial judge. Drummond J proposed to make the order sought by the respondents to transfer the case to Melbourne, as it seemed to be the more convenient and cost-effective location for the trial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established