Encore Holdings Pty Ltd v Plastech Holdings Pty Ltd

[1997] FCA 916

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)  VG 131 of 1997
)
GENERAL DIVISION	)

BETWEEN:	ENCORE HOLDINGS LTD First Applicant VIVA MAGNETICS LTD Second Applicant
AND:	PLASTECH INDUSTRIES PTY LTD Respondent

JUDGE:	HEEREY J
PLACE:	MELBOURNE
DATE:	27 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The proceeding number VG 131 of 1997 be transferred to the New South Wales Registry of the Federal Court.

1. There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)   VG 131 of 1997
)
GENERAL DIVISION	)

BETWEEN:	ENCORE HOLDINGS LTD First Applicant VIVA MAGNETICS LTD Second Applicant
AND:	PLASTECH INDUSTRIES PTY LTD Respondent

JUDGE:	HEEREY J
PLACE:	MELBOURNE
DATE:	27 AUGUST 1997

REASONS FOR JUDGMENT

I have come to the conclusion that this application for transfer to the New South Wales Registry should succeed.  The general principles are not in doubt and are laid down by the Full Court in National Mutual Holdings Pty Ltd v Century Corporations (1988) 19 FCR 155.

Looking at this matter broadly, the thing that strikes me about it is that the applicants are foreign companies who do not carry on any business in Australia.  They could have equally well have commenced this proceeding in the New South Wales Registry.  Sydney is the place where the respondent company carries on business.  The applicants have no connection with Victoria apart from the fact that their solicitors in Hong Kong have a professional relationship with the solicitors retained in Melbourne.  So from the point of view of the applicants, the only inconvenience that will occur to them if the proceedings are moved to Sydney is self-inflicted.

The applicants have chosen to come to Melbourne and have retained expert witnesses here.  I am told nothing as to the nature of this expert evidence, but I think I can reasonably infer that it is of a kind which, if it could be found in Melbourne, could also be found in Sydney.

Against that, it is a serious inconvenience for any company to conduct litigation in another State.  There is another layer of legal representation involved.  Apart from evidence, there are the practicalities of communication with legal advisors and, in the course of the trial, giving instructions, conducting negotiations and the like.  All this is very difficult and expensive and disruptive of the ordinary business of a company such as the respondent.

As to the evidence, I agree with counsel for the applicants that it is not merely a matter of counting heads.  However, it does seem here that the primary issue in reality is likely to be that of prior use.  The respondent will have some eight witnesses located in Sydney who will give evidence on that issue.  It also has five witnesses on the issue of infringement. 

As against that, the applicants propose to call evidence of an expert.  The expert was not retained until after this application for transfer was brought, and as far as the material discloses, the applicants have not passed beyond the stage of arranging the retainer.  I infer that, in the absence of any evidence to the contrary, no substantial expense has been incurred with these experts which would be wasted if the matter were transferred to Sydney.

This issue having been raised, and properly so, at the outset, a decision has to be made.  I do not think it would be a practical or convenient course to see how the proceedings develop and then allow or require the respondent to renew its application at some later stage.  So for these reasons I will make the order sought.

I certify that this and the preceding  page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 27 August 1997         

Counsel for the Applicant:	Mr G C McGowan
Solicitor for the Applicant:	Davies Ryan de Boos
Counsel for the Respondent:	Mr W G Muddle
Solicitor for the Respondent:	Catherine Carney & Associates
Date of Hearing:	4 August 1997
Date of Judgment:	26 August 1997