Badas Pty Ltd v Commissioner of Taxation

[1986] FCA 372

IN THE FEDERAL 4:GrIFT

#IF ArJSTFdLIA

NEW SOTJTH MALES Nu. G 2 6 0 ~f 1986

DISTFICT REGISTRY 1

I3ENEE.L	DIVISION	l
B E T W E E N : BADAS PTP. LIMITED AS TRUSTEE
=-THE BADAS FAMILY TRUST

Applicant

and

THE DEPUTY COMMISSIONER OF TAXATION

OF THE COMMONWEALTH OF AUSTRALIA

Respondent

m: TOOHEY J.

18 Auaust 1986

G--T-E.PORE REASONS FOR-JUDGMENT

It might be possible to dispose of this matter in terms

of whether It is premature or otherwise at this staue to consider

an alteration m venue. But. It seems to me that I should deal

with the considerations that have been urued by counsel in favour

of retainlnq Sydney as the venue for the hearins of this

applicatlon or in favour of transferring It to Perth.

The applicatlon 1 s application an under the

Administrative Declslons (JudlciLRevlew) Act 1977. It is

presently supported by an affidavit sworn by Mr. Girdwood, who is

a director and publlc offlcer of the appllcant. whlch recites

several matters and exhlbits a number of documents. Whether that

wlll represent the entlretv of the applicant's evidence remalns to

be seen. thouan ~t ma'.' be assumea. f a l r l :~ I thlnk. that any other

macerlal I;o be relled uoon bv the appilcant bv affldavlt	w ll have
a source In Wescern Australia.

On the resoondent's part. some affidavlts have been

filed by officers of the respondent In New South Wales. But thev

are affLdavlts of a formal nature and do not bear upon the

substantive Issues llkeip to ar15e. It is not clear whether the

resuondent wlll file any affidavlt In answer to the materlal

furnished bp the applicant: but if such an affldavlt is filed, I

take It that It will come from an officer of the respondent in

Western Australia.

The significance of those comments is that while the

precise course that the application will take has not pet been

finally determined, broadly speakinu it will take the form of

affidavit evidence. It is at least conceivable that deponents may

be required to attend for cross-examination. If they are, those

deponents will be in Western Australia.

The application itself has a stronq Western Australian

flavour. If I can put It that way. in so far as the applicant and

the trust. of which the applicant 1 s trustee, both have cl

resldence in Western Australia. Western Australia is the oriain

of the 'returns furnished by the applicant. It is, it would

apoear. the orluin of decisions taken by the respondent. If that

Inference cannot fairly be drawn. from what Mr. m e r said It is

at least clear all lnqulries made and investluations carried out

have b en wlthin the W stern Australian offlce. Those

Acralnst those conslderations Mr. Bloom has araued two

general srososltlons. One LS that the appllcant 1 s entitled to

choose Its venue and. m the absence of evidence that that 1 s an

mconvenlent venue. then the appllcant should be permitted that

decision. "he second qraument In broad terms is that the matter,

so far as the appllcant is concerned, has been handled by Sydney

solicitors and counsel and that transfer of venue to Western

Australla could cause some additional cost to the applicant.

As to the flrst of those proposltions. it is undoubtedly

true as a ueneral proposition. But this motion has to be

considered in the liuht of all the relevant material includinu

those matters to which I have referred. As to the second

proposition, it seems to me that. so far dz solicitors' costs are

concerned. the applicant's sollcitors	have a presence both in
Svdney and In Perth. It is hard to see	how additional solicitors'

costs would be Incurred, bearinu in mind that the application with

whlch the Court will be concerned is an appllcation for review and

that the Court will not be concerned with the validity of the

assessments ralsed against the applicant.

So In the end lt seems to me the consideration most

tellinu In favour of the venue remaininu in Perth is some

additlonai cost that would be lncurred if counsel had to travel

from Sydney to Perth or alternatlvelp costs thrown away if Sydney

counsel were not retamed and Perth counsel were engaued. That 1 s

4 .

a matter tr, be r-aken Lntro account. It seems to me that It dces

p . 0 ~ 1:lu ths scales acramst the gther conslderatlons which I have

mentloned. The charactet- cf che matter LS a hestern A u s c r a l ~ s n

matter: the resldence of the aoplicant and those assoclated wlth

the *oDlicant is I n Western Australia. The resldence for

uractlcal purooses of the respondent IS ln Western Australia ln

that It is Western Australian officers who would be Involved in

lnstructlons qlven for the purpose of the application. There is a

rlsk, that may not be known until qulte late in the day. that the

deponent of an affidavlt may be requlred to attend for

cross-examinatlon. It IS d risk that could lead to considerable

cost and of course conslderable inconvenience if the matter were

to remain in Sydney.

It seems to me that I am sufficiently seized of the way

in which the matter 1 s likely to proceed. without beinu able to

forecast every step. for me to make a decision on the matter. The

decision I make is that the balance of convenience is very much in

favour of the matter beinu heard in the state to which. in a broad

and perhaps colloquial sense, Lt belonus. By that, I mean the

residence of those associated wlth the litiuation	on both sides.
I therefore accede to the order souuht.

I certify that this and the preceding

three pages are a true copy of the

ex tempore reasons for judgment herein

of his Honour Mr. Justice Toohey.

Associate

Dated: 2 September 1986