Austin Crowe, P. v Fourteenth Mandolin Pty Ltd

[1986] FCA 224

not for general d l s t n b u t l o n

.22+

Trade Practices Act 1974 3.82

C m :

Jacobs and anor. v. Claudius Enterprises Ptv. Ltd. and anor.

(1985) ATPR 40.511

PHILLIP AUSTIN-CROWE and MARION VIRGINIA WINIFRED AUSTIN-CROWE

v . 2

No. W+ G28 of 1986

MUIRHEAD J.

PERTH

6 JUNE 1986

!ALIA

ISTHY	)
iION	)
PHILLIP AUSTIN-CRONE and MARION VIRGINIA
NINIFRED AUSTIN-CROWE-

Applicants

and

FOURTEENTH MANDOLIN PTY. LTD.

First Respondent

JOSEF RABAIOV

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: MUIRHEAD J.

DATE OF ORDER:	6 June 1986
WHERE MADE:	Perth

THE COURT ORDERS THAT:

1. The motion be dismlssed.

2. The first respondent to pay the applicants’ costs of and

incidental to the application in any event.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

C E T W E E N :

FHILLIF AUSTIN-CROW	and MARION VIRGINIA
MA IN IF RED AUSTIN-CROWE

Applicants

and

FOURTEENTH MANDOLIN PTY. LTD.

First Respondent

and

JOSEF RABAIOV

Second Respondent

CORAM: MUIRHEAD J.

6 June 1986

REASONS FOR DECISION

The first respondent by Notice of Motion filed on 14 May

1986 seeks an order that the proceedings be transferred to the

Victorian Registry of this Court. It is apparent from the

affidavits filed in support that both respondents desire the

matter to be heard in Melbourne. The second respondent is a

director of the first respondent. The applicants' cause of action

arises out of an agreement for the sale and purchase of a video

wholesale business carried on in Perth. Damages are claimed inter

alia for fraudulent misrepresentation negligent mis-statement and

pursuant to 3.82 of the Trade Practices Act 1974.

Basically the application is made on the qrounds that if

the matter is to be heard In Perth. the flrst respondent, to use the words of the second respondent in his affidavit filed 14 May

“will suffer irreperable, incalculable damage as it will be

necessary to close down the first respondent’s offices” if the staff are required in Perth to give evidence. There is also some

affidavit evidence that two members of the respondent’s staff

suffer physical ailments which may prevent air travel. I will

accept that evidence (contained In the second respondent‘s

affidavit) at face value although it is entirely hearsay and the

medical certificates in support have no true evidentiary value.

The second respondent has offered to pay the air fares and

accommodation and incidental expenses of the applicants and their

witnesses to enable them to travel to Melbourne fo the hearing.

The applicants, who carry on business in Perth, with the

assistance of two children contest the application. They have

already encountered difficulties associated with the necessity of

.

a change of solicitors. They have instructed solicitors and

counsel in Perth, their financial circumstances are difficult and

the second	applicant’s health, upon her affidavit, is	far from
robust.

A hearing date has not yet b en fixed and it is unlikely

that the hearing will commence within at least the next three

..c'-" , - _ _ _ . : . l ! : l! * I L L :rfl,'G82.!:? a . , l ; :L:.:,?:! : , 2 - 2 . r.ut;:l?a L.; :he

parr;?? ;.?ell In azvznce. 1 m- f ~ r from zatlsfld that the

necesslty of the second respondent and Its witnesses attending ln

Perth to give evldence will cause damage of the degree sworn to in

the second respondent's affldavit. There are regular direct

fllghts between Melbourne and Perth; there will be adequate time

to plan means of managing and carrying on the office in St.

Kilda, Victoria, where the respondent carries on its principal

activities, namely "the production and provision of video tapes on

a wholesale basis to agencies in Tasmania, New South Wales.

Queensland, South Australia, Northern Territory and New Zealand".

The 'substantial hardship' to staff referred to in the second

respondent's affidavit is a problem which is commonly encountered

by witnesses required to give evidence interstate. If witnesses

are too ill to travel other alternatives are available. The

courts are mindful of such problems and endeavour to ensure that

parties have adequate opportunity of doing justice to their cause.

I am well satisfied that the matter should be determined

by this Court sitting in Perth, where the applicants reside and

carry on business, where the first respondent has a

representative, where the business, the source of the litigation,

was situate and where the action was commenced. Despite the

second respondent's offer to pay the added costs of travel and

accommodation, which would be incurred by the applicants in

travelling to Melbourne, there are other matters to be considered

outlined in the applicants' affidavits and their counsel's

submissions. I am satisfied that to direct the hearing to take

place in Melbourne will cause considerable personal inconvenience

I am not persuaded that the balance of convenience

justifies the order sought, nor am I persuaded that the first

respondent's business will be jeopardised should the matter

proceed to trial in Perth. I am concerned however that a transfer

of the hearing to Melbourne may do injustice to the applicants who

have a prima facie entitlement to proceed in Perth,	as the proper
place for trial.

The motion is dismissed. The first respondent must pay

the applicants' costs	of and incidental to the motion, in any
event.

I c e r t l f y t h a t t h l s a n d t h e t h r e e

p r e c e d m g p a g e s are a t r u e c o p y of

the Reasons for D e c l s l o n h e r e i n o f

h l s Honour M r J u s t i c e M u i r h e a d .

A s s o c l a t e

Dated: 6 June 1986

. ..