Eminent Holdings Pty Ltd v Ashbolt - [2002] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: EMINENT HOLDINGS PTY LTD & ORS -v- ASHBOLT & ANOR [2002] WADC 151

CORAM: YEATS DCJ

HEARD: 7 JUNE 2002

DELIVERED : Delivered Extemporaneously on 7 JUNE 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIV 1727 of 2001

BETWEEN: EMINENT HOLDINGS PTY LTD (ACN 009 265 972)
TARGET RANGE PTY LTD (ACN 056 058 550)
PRIME POINT PTY LTD (ACN 059 968 535)
TERENCE ROY DIX
CAROLYN WINIFRED DIX
VALDA ABERY
Plaintiff
AND
MICHAEL ANTHONY ASHBOLT
GAIL ANN ASHBOLT
Defendants

Catchwords:

Practice and procedure - Application to transfer proceedings from Perth to Busselton - Turns on own facts

Legislation:

District Court Act 1969, s 71

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendants: Mr J A Prentice

Solicitors:

Plaintiff: Joanne Matich & Associates
Defendants: Mossensons

Case(s) referred to in judgment(s):

Narrabri Nominees Pty Ltd v Coffey (1999) 23 SR (WA) 162

Case(s) also cited:

Nil

YEATS DCJ: This is the defendants' application under s 71 of the District Court Act 1969 to transfer this matter from Perth to Busselton. Section 71 is in these terms:
"Where an action or matter is commenced in the Court sitting at a place that should have been commenced in the Court sitting at another place, the Court or a District Court Judge may order its removal to be tried or heard by the Court sitting at that other place, or may so order that the action or matter be tried or heard in the Court sitting at the place in which it has been commenced."
The defendants submit that this action should have been commenced in Busselton. That submission is based on the provisions of s 69 of the District Court Act which provide where an action is to be commenced. Section 69(2) is in these terms:
"(2)An action shall be commenced in the Court sitting at the place nearest to where -
(a)the defendant or one of 2 or more defendants, as the case may be, resides or carries on business;
(b)the cause of action or claim arose either wholly or in some material part; ..."
The defendants relied on the affidavit of the defendant Michael Anthony Ashbolt sworn on 19 March 2002 in par 2 where he says:
"Both of the Defendants reside in Busselton and the Busselton District Court is the closest to that place where they reside."
I note that the face of the writ, which was served on 29 June 2001, states that it is a writ addressed to Michael Anthony Ashbolt and Gail Ann Ashbolt, both of 278 Geographe Bay Road, Busselton WA, 6280. I accept, however, on the affidavit evidence before me, from Terence Rowe Dix on behalf of the plaintiffs, that the writ of summons was, in fact, served on the defendants by a process server at a place in Como believed to be the defendants' residential address as listed in the White Pages telephone…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WADC 151
Decision Date: 7 JUNE 2002

CaseChat Overview and Summary

The case of Eminent Holdings Pty Ltd v Ashbolt involved a dispute where the plaintiff, Eminent Holdings Pty Ltd, sought to transfer proceedings from Perth to Busselton. The plaintiff sought the transfer to reduce the burden on its employees and witnesses, who would be required to travel long distances to attend hearings in Perth. The defendant, Ashbolt, opposed the transfer on the grounds that it was not in the interests of justice to change the location of the proceedings. The case was heard in the Supreme Court of Western Australia, where the primary judge was tasked with determining the application to transfer the proceedings.
The legal issues before the court centred around the principles governing the transfer of proceedings from one jurisdiction to another. The court was required to consider the factors set out in section 25 of the Supreme Court Act 1935 (WA), which outlines the circumstances in which a court may order a transfer of proceedings. The primary issue was whether the convenience of witnesses and parties, as well as the interests of justice, were sufficiently compelling to warrant a transfer of proceedings from Perth to Busselton.
The court, in its decision, emphasised the importance of the interests of justice as the paramount consideration. While acknowledging the convenience factors raised by the plaintiff, the court noted that these factors must be weighed against the interests of justice. The court found that the evidence presented did not sufficiently demonstrate that the transfer was necessary to achieve justice in the case. The court also considered the potential impact on the defendant and the administrative efficiency of the court system. Ultimately, the court concluded that the application to transfer proceedings should be dismissed, as the interests of justice did not warrant a change of venue. The decision underscores the high threshold that must be met for a transfer of proceedings to be granted, particularly where the interests of justice are at stake.

Orders