Jacobs, Anthony Dale v Claudius Enterprises Pty ltd

[1984] FCA 411

Re: ANTHONY DALE JACOBS and BETTY ANNE JACOBS
And: CLAUDIUS ENTERPRISES PTY LIMITED and WILLIAM JOHNSON
No. QLD G71 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.

CATCHWORDS

Practice and Procedure - application for change of venue - Trade Practices Act application in respect of franchise agreement concerning pizza parlour in Cessnock, New South Wales - application filed in Queensland where applicants now reside - respondent company incorporated in Tasmania where respondent director resides - factors to be taken into account relevance of clause in franchise agreement providing for jurisdiction of Tasmanian courts.

Federal Court Rules 0.10 r.2(f)

HEARING

BRISBANE

#DATE 27:8:1984

ORDER

1. Direct that this proceeding be transferred to Registry in New South Wales there to be listed for directions as to hearing of proceedings.

2. Costs reserved.

JUDGE1

This is the respondents' notice of motion that the proceedings be transferred to the Tasmanian District Registry of the Federal Court of Australia.

1. In relation to that application, Order 10 rule 1 of the Federal Court Rules provides in sub-rule (1) that on a directions hearing, "the Court shall give such directions with respect to the conduct of the proceedings as it thinks proper." Sub-rule (2) of rule 1 of Order 10 provides:
   
   

"(2) Without prejudice to the generality of sub-rule (1) the Court may

...

(f) direct that the proceeding be transferred to a place at which there is a Registry other than the then proper place. Where the proceeding is so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his charge relating to the proceeding to the Registrar at the proper place to which the proceeding is transferred."

1. This application is an application seeking relief under the provisions of the Trade Practices Act 1974 ("the Act") in respect of a franchise agreement entered into concerning a pizza parlour business called "Mamma Rosas Pizzas (Cessnock)" at premises located at Shop 1B Cooper Street, Cessnock in New South Wales. The first respondent to the application is a Tasmanian company and the second respondent is a director of the first respondent.

2. The application was brought in the Queensland Registry and both applicants now reside in Queensland. The second respondent at all times has resided in Tasmania. The conduct at the foundation of the application involves alleged misrepresentations as to the turnover of the pizza parlour business and as to the quality of the equipment that was used for that business.

3. For the applicants on the notice of motion, Mr Jackson indicated that the witnesses likely to be called on behalf of the respondents are the second respondent, who lives at Moriarty in Tasmania, his wife, who lives at Moriarty in Tasmania, and one Brent Annear and one Malcolm McGinn, who, it is said, were the prior franchisees of the business, who presently live in Launceston in Tasmania.

4. Further, my attention has been directed to a document which is said to be a copy of the type of franchise agreement which was entered into in this matter and, in particular, to the provisions of sub-clause (12) of clause 8 which provides:
   
   

"(12) This agreement shall be construed and governed by the laws for the time being operating in the State of Tasmania and all parties hereby submit to the jurisdiction of the Courts of Tasmania."

1. Mr Jackson quite properly concedes that that clause can have no direct application in detemining venue and, in particular, can have no direct application when one is dealing with the provisions of the Federal statute in question here, the Act, and, further, he drew my attention to Angas v.Tremaine (1908) 25 W.N. (N.S.W.) 43 where a clause in a contract was referred to by Pring J., and his Honour pointed out that such contractual provisions could not bind the court as to what is the appropriate venue in all circumstances.

2. The primary submission really was that the conduct sought to be impugned occurred in Tasmania, and it was submitted that the majority of witnesses reside in Tasmania and, insofar as sub-clause (12) of clause 8 of the franchise agreement does have relevance, it indicated an intention by the parties to have their contractual disputes resolved according to the laws of Tasmania, which may have some significance in the determination of this application.

3. Reference was made to, and reliance placed upon, the general principles referred to by Sugarman J. in Kings Cross Whisper Pty Ltd v. O'Neil (1968) 2 NSWR 289 at p 290.

4. Mr Roberts for the respondents to the notice of motion submitted, first of all, that considerations ordinarily attendant upon an application for a change of venue did not apply here because the application was based on the Act which has a national operation. His primary submission was that Mr and Mrs Jacobs were entitled to initiate the proceedings here and, because the claim was based on an Act of national application, the hearings should be continued here. It does not require too much consideration to reject that primary submission.

5. His alternative submission was that, on a proper consideration of all the material, in particular an affidavit sworn by the male applicant, if there were to be a change of venue, it ought properly be to the New South Wales Registry for these reasons:
   
   

(i) the business was located there;

(ii) the residence of the majority of witnesses indicates that New South Wales would be a more appropriate venue than Tasmania;

(iii) the personal circumstances of both applicants are such that they would be subjected to extreme financial stress and inconvenience were the venue to be transferred to Tasmania; and

(iv) a possible consequence (to put it no higher) may be that the applicants would be shut out of pursuing any claims that they had.

1. That affidavit, while it swears that both Mr and Mrs Jacobs are unemployed at the time of its swearing, does not go further into their resources; but, equally, it has not been the subject of any challenge or further exploration.

2. So far as the question of the location of the majority of witnesses is concerned, the respondents to the notice of motion did descend into particularity, albeit in the course of the hearing. They indicate that not only is the business, the subject of this application, located in Cessnock, but, while the identification of witnesses has not occurred before me, it is likely that there will be necessary witnesses from the Cessnock area of New South Wales.

3. The suggestion was made that since the questions concern, first of all, the turnover of the business, it is likely that there may have to be either banking or accounting evidence which more likely than not would be from the Cessnock area. In addition, contractors, who dealt with and serviced the equipment, would be from that area. For myself, I think that some valuation evidence may, in fact, be likely, and the location of the equipment would be a not irrelevant consideration. Further, the final suggestion was made that evidence may be called from subsequent franchisees on the question of the quality of the equipment in the shop premises.

4. In my view, on an application pursuant to Order 10 Rule (2)(f), it is proper to take into account the residence of the parties; the residence of the witnesses for the various parties; the expense and prejudice likely to the respective parties, the likelihood of delay being a significant consideration; whether there is, in respect of the competing suggestions as to venue, any possibility of an interference with a fair trial of the hearing; and, ultimately, the balance of convenience having regard to all considerations.

5. There is, in this case, no material suggesting delay or the absence of a fair trial to either party in respect of the alternative venues.

6. While it is true the respondents to the notice of motion have not identified at this stage the witnesses to be called, I believe it sound that there will be at least a number of witnesses who will reside in the area of the business sold in Cessnock. Having regard to the fact that both Mr and Mrs Jacobs live in Queensland, and the second respondent to the application and his wife live in Tasmania, and that the second respondent indicates that his two further witnesses live in Tasmania, in my view, the considerations to which I have earlier referred suggest that justice will best be done by transmitting this action for hearing in the New South Wales District Registry.

7. If, on further inquiry, or on further information coming to light, it appears that this does work injustice to the respondents, or other material emerges which strongly indicates a venue other than New South Wales, then a further application may in fact be entertained.

8. I direct that this proceeding be transferred to the Registry in New South Wales, there to be listed for direction as to the hearing of the proceedings. The question of costs is reserved to the court hearing the matter.