Australian Competition and Consumer Commission v Exclusive Media and Publishing Pty Ltd

[2011] FCA 1338

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Exclusive Media & Publishing Pty Ltd [2011] FCA 1338

Citation:		Australian Competition and Consumer Commission v Exclusive Media & Publishing Pty Ltd [2011] FCA 1338
Parties:		AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EXCLUSIVE MEDIA & PUBLISHING PTY LTD ACN 136 430 825, ELITE PUBLISHING GROUP PTY LTD ACN 130 180 719, WILTSHIRE PUBLISHERS PTY LTD ACN 121 437 741, SUPERIOR PUBLICATIONS PTY LTD ACN 120 552 365 and ANDREW EDWARD CLIFFORD
File number:		QUD 306 of 2011
Judge:		DOWSETT J
Date of judgment:		17 November 2011
Date of hearing:	17 November 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr M Hodge
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondents:	Mr CI Newport of Burnslaw as town agents for Galbally Rolfe

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 306 of 2011

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

EXCLUSIVE MEDIA & PUBLISHING PTY LTD ACN 136 430 825
First Respondent

ELITE PUBLISHING GROUP PTY LTD ACN 130 180 719
Second Respondent

WILTSHIRE PUBLISHERS PTY LTD ACN 121 437 741
Third Respondent

SUPERIOR PUBLICATIONS PTY LTD ACN 120 552 365
Fourth Respondent

ANDREW EDWARD CLIFFORD
Fifth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	17 NOVEMBER 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the application be dismissed; and

2.the respondents pay the applicant’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 306 of 2011

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

EXCLUSIVE MEDIA & PUBLISHING PTY LTD ACN 136 430 825
First Respondent

ELITE PUBLISHING GROUP PTY LTD ACN 130 180 719
Second Respondent

WILTSHIRE PUBLISHERS PTY LTD ACN 121 437 741
Third Respondent

SUPERIOR PUBLICATIONS PTY LTD ACN 120 552 365
Fourth Respondent

ANDREW EDWARD CLIFFORD
Fifth Respondent

JUDGE:	DOWSETT J
DATE:	17 NOVEMBER 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant in these proceedings (the “ACCC”) seeks declaratory, injunctive and other relief in connection with conduct alleged against the various respondents, relying upon ss 52, 53 and 51AC of the Trade Practices Act 1974 (Cth) and perhaps upon other provisions of that legislation. The proceedings arise out of representations and statements made, primarily in documentary form, to various persons located throughout the Commonwealth of Australia. The first, second, third and fourth respondents are corporations. The fifth respondent, Andrew Edward Clifford, was substantially responsible for the day-to-day management and operation of those corporations. The conduct in question was, as I had said, largely in documentary form. It seems that the four corporations had registered offices in Queensland. Some aspects of the relevant transactions appear to have been designed to create the perception that correspondence from the companies was emanating from Queensland. I do not, in saying that, mean to suggest any ulterior purpose in that step. I am saying only that it would have appeared to the recipients of at least some of the correspondence and electronic communications that the corporations were operating in Queensland.

2. I am presently concerned with an application by the respondents for the transfer of the matter to the Victorian District Registry.  The bases upon which the application is made appear in summary form from the respondents’ outline of submissions.  It is said that the fifth respondent, Mr Clifford, resides in Melbourne with his young family.  The respondents have retained Melbourne solicitors and barristers to represent them.  A considerable amount of work will have to be done in advance of the trial, including consultations between the lawyers and Mr Clifford.  It is suggested that he may need to spend significant time in Brisbane in preparation for the hearing.  However, in view of the retainer of Melbourne legal advisers, that seems not to be the case.

3. It is then suggested that when one considers the balance of convenience of the witnesses the interests of justice lie in the direction of the matter being heard in Melbourne.  It is also said that the applicant has unlimited resources in contrast to the respondent.  Whilst it may be the case that the applicant has substantial resources, I doubt very much whether, in these days of austerity, it can sensibly be said that any government agency has unlimited resources.  It certainly would be inappropriate if it were said of this Court at the present time.  There is no evidence as to the respondents’ financial resources.  In those circumstances it is difficult to place much weight upon the question of disparity of resources.  Although the respondents have chosen legal advisers in Melbourne, it is open to them, should they wish to do otherwise.  It may well be that they have ongoing relations with a particular firm of solicitors or with a particular barrister, but that is not a matter which should weight heavily against the applicant which is conducting the matter using Brisbane counsel. 

4. At least superficially, the respondents’ strongest argument concerns the witnesses.  However even that argument does not withstand close scrutiny.  The respondents’ solicitor has sought to identify the witnesses in paras 25 to 31 of his affidavit.  He says that there are five potential witnesses living in Victoria and, for present purposes, I infer in Melbourne.  The ACCC has indicated that it only intends to call three of those witnesses, the other witnesses being Mr Clifford and Ms Dilema.  Whether or not the respondents propose to call either witness is unclear, although I infer for present purposes that they do.

5. It may be accepted that it would be more convenient for those five witnesses if the trial were to be held in Melbourne.  However that must be measured against the convenience of the other witnesses.  One witness is to come from Armidale.  She has indicated that it would be more convenient for her to come to Brisbane.  Two witnesses come from Scone.  The evidence suggests that it would be more convenient for them, were they to travel by road, to come to Brisbane.  Where the convenience may lie, should they seek to use other means of travel, is not clear.  There is one witness from South Australia.  Whether the witness comes to Brisbane or goes to Melbourne it will be a question of one flight, although the flight to Melbourne would be significantly shorter.  Two witnesses are coming from provincial Queensland, one from Townsville and one from Bowen.  Obviously, their convenience will best be suited by coming to Brisbane, or at least on the material before me I would draw that inference.  Similarly the principal investigator for the ACCC is based in Brisbane.  As I understand it, her convenience would be suited by a trial in Brisbane.  Thus it seems to me that there is virtually nothing in it.  In those circumstances no reason is demonstrated for transferring the matter to Melbourne.  Given that matters are fairly evenly balanced, it is also appropriate to take into account the fact that the proceedings have been commenced here.  Were the considerations not evenly balanced, that matter would not be relevant. 

6. In the circumstances I refuse the application.  I order that the respondents pay the applicant’s costs of the interlocutory application. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       3 January 2012