Camilla Pty Ltd v ACTU Austrlaia Ltd

[1990] FCA 593

&P m,e ~ Y S & / B L M ~ ~ /

5-93/70

JUDGMENT No ........ .,-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No VG 246 of 1990
1
GENERAL DIVISION	)

BETWEEN: CAMILA PTY LTD

(Firstnamed Applicant)

AND :

-	PHILLIP RICHARDSON (Secondnamed Applicant)
m:	BILL PALIGOROV (Thirdnamed Applicant)
AND :	ACTUS AUSTRALIA LTD (Firstnamed Respondent)
m:	ACTUS SINGAPORE (PTEl LTD

RECEIVED	(Secondnamed Respondent)
2 9 OCT 1990

FEDERAL COURT OF AND: DEREK PYNT

AUSTRALIA

PRINCIPAL

REGISTRY (Thirdnamed Respondent)

AND :  GAN SIAN KIONG
(Fourthnamed Respondent)

Coram: Ryan J.

--	Date. 2 October 1990
Place: Melbourne

(a)	Damages for breaches of Section 52 and 53(e) of the Trade Practices Act 1974 (Commonwealth) Section 11 of
the Fair Tradrng Act (Victoria) (No. 10201) and Section 10 of the F a n Trading Act (Western Australia)

EX TEMPORE REASONS FOR JUDGMENT

By an application filed in the Melbourne Registry of this

Court, the applicants have claimed:

"1. As aaainst all Res~ondents -

(b) Damages for negligent mis-statement.

2.    As aqalnst the firstnamed Respondent -

(a)	Damages for breaches of collateral warranty;
(b)	Damages for breach of contract.

3.   Declarations that -

(a)	the price of the goods ("the said goods") delivered by the firstnamed Respondent to the firstnamed Applicant during the period between April 1989 and January 1990 and claimed to be due to the firstnamed Respondent by the firstnamed Applicant exceeds the price permitted to be charged by the terms of the agreement made between the parties on 17th August 1989 ("the first agreement");
(b)	The frrstnamed Respondent is estopped from alleging that the Applicants or any of them is indebted to it for moneys due further to the terms of an agreement allegedly made by the Applicants with the firstnamed Respondent in February 1990 ("the second agreement");
(c)	the second and thirdnamed Applicants did not guarantee payment by the firstnamed Applrcant of any sums due under the second agreement.

4.    An injunction restrarning the firstnamed Respondent, whether

by itself, by its servants or agents or otherwise, from taking or maintaining any proceeding, action or petition seeking to recover from the Applicants or any of them moneys allegedly due further to the tenns of the second agreement or any agreement for the sale of the said goods."

There are also claims in the application for interest, costs
and further or other relief. The firstnamed applicant, Camila Pty

Ltd ("Camila"), is the licensee under an agreement with the

became entitled to grant franchises for the sale by retail in	firstnamed respondent dated 12 August 1989 under which Camila
Victoria, Tasmania, the Australian Capital Territory and southern New South Wales, of "Actus" furniture products.

Clause 23 of that agreement provides under the heading

"Arbitration" :

"Any and all disputes arising from or in connection with this Agreement or transaction conducted under this Agreement shall be settled by arbitration in Western Australia."

Under the heading "Wvernina Law" it is provided:

"This Agreement shall be governed by the laws of Western
Australia."

On 25 July 1990 before the proceedings were instituted in this Court, an action was commenced in the Supreme Court of Western Australia by the firstnamed respondent, Actus Australia Ltd ("Actus") against Camila for moneys due under the licence agreement and against the second and thirdnamed applicants, Messrs Richardson and Paligorov, as guarantors of due performance of Camila's obligations under that agreement.

Camila and Messrs Richardson and Paligorov have entered a conditional appearance in the Supreme Court of Western Australia but have not sought to stay those proceedings or have them transferred to this Court. However, Mr Moshinsky QC who appears with Mr Ruta for Camila and Messrs Richardson and Paligorov accepts, as I understood him, that it is appropriate for both actions to be heard and determined in the one Court. He contends that this Court is more appropriate for the resolution of the

whole litigation between the parties than the Supreme Court of
Western Australia.

Actus has moved on notice dated 18 September 1990 for an order pursuant to s.5(4) of the Jurisdiction of Courts (Cross- Vestinal Act 1987 that the proceedings in this Court be transferred to the Supreme Court of Western Australia. In support of that motion Actus has relied on an affidavit of one of its directors, Mr Heng, in which it is deposed that:

"(a)	Neither Actus, nor the secondnamed respondent has offices in Victorra.
(b)	Neither Actus nor the secondnamed respondent have any employees in Victoria.

(c) The second respondent does not trade in Australia.

(d)

Actus has its registered office at 1472-1479 Albany Highway, Cannington in the State of Western Australia, which is the centre of almost all of its Australian activities.

(e)

The only connection that Actus has with Melbourne is that it contracted in wrrtrng to provrde franchise rights to the first applicant, Camila Pty Ltd ("Camila"), and has sold and delivered goods to Camila, and Camrla to the best of my knowledge, has its registered office in Melbourne. The performance by Camrla of its obligations under the sard contract was guaranteed by the second and third applicants, Mr Richards and Mr Palrgorov, who both reside in Melbourne."

In opposition to the present application, Camila and the second and thirdnamed applicants rely on an affidavit of Mr Paligorov, sworn on 1 October 1990, in which details are given of the circumstances which led the applicants to enter into the licence agreement and of representations allegedly made to induce them to do so. In paragraph 13 of that affidavit it is deposed:

"At the trial of this proceeding the evidence which the Applicants

desire to call includes the following:
(a)	evidence that the furniture supplied by the first and second Respondents was not exclusive but was similar to furniture available by Melbourne based furnrture retailers. The applicants intend to call Melbourne based furniture retailers with respect to this issue.
(b)	Also the Applicants desrre to lead evidence from Melbourne based furniture wholesalers about the prices charged for goods similar and comparable to the goods supplied by the first and second Respondent wrth a view to demonstrating that the prlces charged by the latter for such goods were not competitive prices. The Applicants will contend that by virtue of the terms of the first agreement the first named Applicant was obliged to pay the first Respondent the usual wholesale w rice before sale8 tax and less a iiscount of eight and one half per centum (8.5%).
(c)	The applicants contend that the first Respondent failed to supply the know-how and promotronal material promrsed and thereby failed to assist the first Applicant to promote the relevant goods. The Applicants intend to produce evidence that the frrst Applicant store at Northland Homemaker Centre would have benefited from the supply of this information and it will be necessary to explain to the court the significance of this information in the context of a Melbourne based xetai.1 outlet.
(d)	A quantity of goods supplied by the first Respondent as alleged in paragraph 23 of the Statement of Claim were defective in that they were inferior in quality, not matching and incomplete. These goods are currently stored in Melbourne.

(e) The damages cla~med by the f~rst Applicant include expenses

needlessly incurred by reason of the alleged misleading conduct. Evidence will be led that such expenses were necessar~ly incurred and were reasonable in amount havrng

regard to the local condit~ons of trade."

As I have said, the motion for transfer of these proceedings

is brought under s.5(4) of the Jurisdiction of Courts (Cross-
Vestina) Act 1987 ("the Act") which provides that:

"Where:

(a) a proceeding (in this subsection referred to as the "relevant

proceeding") is pending in the Federal Court or the Famrly

Court (in this subsection referred to as the "first court'); and

(b) it appears to the frrst court that:

(i)  the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii)  having regard to:

(A) whether, in the opinion of the first court, apart from t h ~ s Act and any law of a State relating to cross-vestrng of jurisdiction, the relevant proceedrng or a substantral part of the relevant proceeding would have been rncapable of being instituted in the first court and capable of being instituted in the Supreme Court of a State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for determinatron in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or valrdity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more approprrate that the relevant proceeding be determined by that Supreme Court; or

(iii)  it is otherwise in the interests of justice that the relevant proceeding be determined by the

Supreme Court of a State or Terrrtory; .

the first court shall transfer the relevant proceeding to that
supreme Court."

I have been referred to several authorities on the application of those provisions to cases raising considerations similar to the present. Those authorities make it clear that there are no elaborately formulated principles governing the exercise of the discretion which is conferred on a court in the position of this court on an application of this kind. As was said by the New South Wales Court of Appeal in Bankinvest AG v

Seabrook (1988) 14 N.S.W.L.R. 711 at 714:

"As a very broad generality rt can be said that the ordrnary day to day administration of the cross-vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be Ln whrch they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative redirection of the proceedings to the other court selected. In the hands of that other court the proceedings wrll continue to attract the Australiawide jurisdiction and law which	would have been exercisable and applicable by the court from which	they were transferred.
Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order."

Consistently with that expression of view with which I agree, I do not propose in these proceedings to enunciate principles of general application which might be regarded as governing the exercise of the discretion which is presently invoked. Rather, I consider the discretion Street C.J. suggested in Bankinvest AG v Seabrook (su~ra) to be a broad one of a general administrative kind.

In coming to the conclusion which I have- that these proceedings should be transferred to the Supreme Court of Western Australia, I have been influenced primarily by the fact that proceedings between substantially the same parties were pending in that Court before the present proceedings were instituted. The agreement into which the principal parties have elected to enter provides in its terms that any arbitration should take place in Western Australia and that the governing law of the contract shall be the laws of Western Australia. There is no evidence to suggest that the administrative arrangements and opportunities for a speedy hearing available in the Supreme Court of Western Australia are less efficacious than those available in this Court.

It is true that in whichever forum the whole litigation be

resolved, some expense and inconvenience will be incurred in the

movement of witnesses from Victoria to Western Australia or from	Western Australia to Victoria, but I am not able, on the
material, to find that the preponderance of that expense will be cast upon Camila and Messrs Richardson and Paligorov.
Accordingly, I am persuaded that I should exercise the discretion conferred by s.5(4) of the Act by granting the application and ordering that the present proceedings be transferred to the Supreme Court of Western Australia. I shall order that the costs of the proceedings in this Court, including the costs of and incidental to the respondentst notice of motion dated 17 September 1990 and of this day be costs in the cause in the proceedings so transferred.

I certify that this and the preceding seven

( 7 ) pages are a true copy of the Reasons for

Judgment of His Honour Mr Justice Ryan.

Associate:

Date: 2 ociro&Ei4 1990

Counsel for Applicants:	Mr N.A. Moshinsky, QC
with Mr V. Ruta
Solicitors for Applicants:	Comito & CO
Counsel for First, Second	Dr P. Buchanan, QC
and Fourthnamed Respondents:	with MS C. Ben-Simon
Solicitors for First, Second	Arthur Robinson & Hedderwicks
and Fourthnamed Respondents:
Solicitors for Thirdnamed	Mallesons Stephen Jaques
Respondent:
Date of Hearing:	2 October 1990
Date of Judgment:	2 October 1990