Koh v ERWIN - [2010] FMCA 278

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOH v ERWIN & ANOR

[2010] FMCA 278

TRADE PRACTICES – Procedure – application to change venue – application refused.

Federal Magistrates Act 1999 (Cth), s.52
Federal Magistrates Court Rules 2001 (Cth), Rule 8.01(2)
Trade Practices Act 1974 (Cth), ss.51AC, 51AD and 52

National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155

Applicant:

ALBERT JOE WENG KOH

First Respondent:

MARK ERWIN

Second Respondent:

UBIQ AUSTRALIA PTY LTD

File Number:

ADG 360 of 2009

Judgment of:

Simpson FM

Hearing date:

Decided on the papers

Date of Last Submission:

14 April 2010

Delivered at:

Adelaide

Delivered on:

5 May 2010

REPRESENTATION

Counsel for the Applicant:

Uma Mahadeva

Solicitors for the Applicant:

Uma Mahadeva

Counsel for the Respondents:

Tony Melville

Solicitors for the Respondents:

Aldgate Lawyers

ORDERS

The respondent’s application for an order changing the venue of the proceedings from the Adelaide Registry to the Melbourne Registry of the Federal Magistrates Court is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATADELAIDE

ADG 360 of 2009

ALBERT JOE WENG KOH

Applicant

And

MARK ERWIN

First Respondent

UBIQ AUSTRALIA PTY LTD

Second Respondent

REASONS FOR JUDGMENT

I have before me an Application in a Case brought by the respondents seeking an order that the venue of the proceedings be changed from the Adelaide Registry to the Melbourne Registry of the Federal Magistrates Court.
It has been agreed by the parties that I should decide this question on the papers without oral argument.
The respondents filed an affidavit in support of their Application in a Case on 21 January 2010. The applicant filed a responding affidavit on 29 March 2010. The respondents filed an affidavit responding on 9 April 2010.
The applicant filed his written submissions on 9 April 2010 and the respondents filed their submissions on 14 April 2010.
The applicant’s claim is for alleged breaches of ss.51AC, 51AD and 52 of the Trade Practices Act 1974 (Cth). The first respondent is managing director of the second respondent. The second respondent is a company incorporated in 2006 and carries on business as a distributor of electric power board systems with the brand name “Eubiq”.
A brief explanation of the applicant’s case is necessary. The applicant claims that he invested $200,000 in the respondents (or one of them) and has not received an account or a proper explanation from the respondents as to how the funds have been applied. The applicant says that certain of the negotiations leading to the making of the business arrangement were conducted in Singapore in August 2007 between he and the first respondent.
The applicant says that he resided in Singapore until about April 2008 when, as a result of the business arrangement, he travelled to Sydney, New South Wales to live. He says that he returned to Singapore in October 2008 following cessation of the business arrangement.
In about January 2009 the applicant obtained employment in Adelaide. That employer sponsored and supported his Section 457 work application. The applicant has resided in Adelaide since January 2009. His legal advisors are based in Adelaide. The applicant says that it would be extremely inconvenient for him, his legal advisors and his witnesses if he had to travel to Melbourne for the trial.
The applicant says that he intends to give evidence at the trial and to call as witnesses his wife, his brother in law and possibly one further witness. He says that all of his witnesses currently live overseas. I take this to mean all of his witnesses other than his wife and himself. He says that with very little cost he can provide accommodation in Adelaide for the witnesses that he intends to call. If the trial is to be in Melbourne there will be significant cost involved for accommodation and other expenditure for himself, his lawyers and his witnesses.
The respondents say that the events that have given rise to the litigation did not occur in Adelaide. They say that the only connection that the litigation has with Adelaide is that the applicant currently resides there.
The respondents say that it would be inconvenient to them and greatly add to the expense of the proceedings if the proceedings were to remain in the Adelaide Registry of the Federal Magistrates Court.
The first respondent says that he resides in Victoria and that the second respondent’s head office is in Victoria. He says that all of the documents relevant to the litigation that are in the possession of the respondents are located in Victoria. He also says that if the matter proceeds to trial all of the witnesses that will be called by the respondents reside in Victoria. At this stage those witnesses are the first respondent, an accountant by the name of Simon Etheridge and a former head of the second respondent’s regional office, Thad Pang.
The Court has power under s.52 of the Federal Magistrates Act 1999 (Cth) to order that the venue for proceedings be changed. Federal Magistrates Court rule 8.01(2) states:
(2) In considering an application, (for an order changing the venue of proceedings) the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
I accept that in considering rule 8.01 ultimately the test is “… where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court”.[1]
[1] National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162.
Having considered the submissions put on behalf of each of the parties I have come to the conclusion that the application should be dismissed. The applicant was entitled to bring the proceedings in South Australia. He has resided in South Australia for quite some time. He is able, at little expense, to provide accommodation for his witnesses if and when they come to Adelaide for the trial. It will be an expensive exercise for the applicant if the venue is changed to Melbourne.
I do not see that the fact that the respondent’s documents are in Victoria should have any impact on where the trial should be held. There is no suggestion that there are so many documents that there would be difficulty or significant expense in bringing them to South Australia for the trial.
I accept that the respondents will incur significant expense if they bring their legal advisors and witnesses from Melbourne for the trial. I take into account however that the respondents chose to engage Melbourne lawyers for these proceedings commenced in Adelaide notwithstanding that a less expensive option might have been to engage Adelaide solicitors and barrister. I also take into account that the respondent’s witnesses may be able to give their evidence by way of video or telephone link and thereby save the cost of the witnesses’ travel and accommodation expenses in coming to Adelaide. A decision on the question of any witness being permitted to give evidence in this way will need to be addressed well prior to trial.
In my opinion neither the convenience of the parties nor the cost of the proceedings should the matter go to trial justify transferring these proceedings to the Melbourne Registry of the Court.
The application is refused.
I make the order to be found at the beginning of these reasons.
I will hear the parties on the question of costs of the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: J. Semler

Date: 5 May 2010