Narrabri Nominees Pty Ltd Trading as Bunbury Tyre & Exhaust v Coffey

[1999] WADC 154

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   BUNBURY

CITATION:   NARRABRI NOMINEES PTY LTD  Trading as BUNBURY TYRE & EXHAUST -v- COFFEY & ORS [1999] WADC 154

CORAM:   VIOL DCJ

HEARD:   6 DECEMBER 1999

DELIVERED          :   Delivered Extemporaneously on 6 DECEMBER 1999 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 45 of 1999

BETWEEN:   NARRABRI NOMINEES PTY LTD  Trading as BUNBURY TYRE & EXHAUST (008 882 906)

Plaintiff

AND

PATRICK JOSEPH COFFEY
MARY OLIVE COFFEY Trading as ADVANCE AUTOMOTIVE HOISTS
First Defendant

ATKINS CARLYLE LTD (ACB 008 666 064)
Second Defendants

Catchwords:

Practice and Procedure - Application to transfer proceedings from Bunbury to Perth - Turns on own facts.

Legislation:

The District Court of Western Australia Act 1969, ss69, 70, 71

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr J Mazza

First Defendant             :     Mr C Garvey

Second Defendants       :     No appearance

Solicitors:

Plaintiff:     John Mazza

First Defendant             :     E N Stamatiou & Co

Second Defendants       :     Mallesons Stephen Jaques

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

Nil

Case(s) also cited:

Nil

1. VIOL DCJ :   This is an application by the first defendants to transfer the hearing of this matter to Perth from Bunbury where the writ of summons, including a statement of claim, was filed.   It seems to be common ground that the contract for the purchase of the machine involved arose as a result of a telephone conversation or telephone conversations between a representative of the plaintiff then resident in Manjimup and owning the business involved in Bunbury and the responsible person from the first defendant in Perth and thereafter with the second defendant in Perth. 

2. Although the second defendant has a branch in Bunbury, it is clear that that branch was not involved in any of the negotiations. Ultimately the machine was supplied for use in Bunbury and there it was that it was said to have broken down, or at least not to be suitable for its original purpose.

3. The documents tend to show that when the matter is litigated the witnesses and counsel involved will be, firstly, witnesses for the plaintiff as to the contract, those to be coming, it seems, from Manjimup and Bunbury; secondly, witnesses for the plaintiff as to the operation of the machine and as to any damage which might arise, also from Manjimup and/or Bunbury; thirdly, solicitors from Bunbury and possibly counsel on behalf of the plaintiff.   Next, witnesses for both defendants as to the contract and the operation of the machine and of course solicitors and counsel for both defendants from Perth.  Neither of those latter firms have branches in Bunbury.

4. As to the question of the possible joinder of the third parties, I am not satisfied that this is a matter which should concern me at the moment and be relevant to the application; firstly because the joinder may not occur - this may well be a matter of resolution before the trial, as it often is.  Secondly, joinder may not be allowed, bearing in mind that leave is to be obtained for that to occur, and finally, of course, the question of joinder of third parties is not really a matter of concern at least to one party in the matter; that is, the plaintiff.

5. The application seems to have been brought under either section 70 or 71 of the District Court of Western Australia Act 1969 ("the Act"). Under s69 of the Act:

   "An action shall be commenced in the court sitting at the place nearest to where (a) the defendant or one or two 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."

6. As to the first matter, I have already said that although there is a branch of the second defendant in Bunbury, I am of the view that bearing in mind the use of the words "carries on business" they do not cover the situation in this particular matter.  The entity with whom the plaintiff apparently dealt was one which was carrying on business in Perth and I am satisfied that that is what is meant by the section.

7. As to the second basis, namely whether or not the cause of action arose either wholly or in some material part in Bunbury or Perth, it is clear, I think, that the cause of action in this case arose in Perth, so that on the face of it, there has been a failure to comply with section 69 of the Act. The action should have been commenced in the Perth District Court.

8. I have already said in the course of discussions with counsel in the course of their submissions that it appears that the defendant is in a position to require or seek the transfer of the action either under s70 or s71 of the Act and that those sections seem to allow, where there is no notice of objection filed (as here), for an application for change of venue 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.

9. In my view this action, bearing in mind the provisions of s69, should have been commenced in Perth. The contract in my view arose either wholly or in some material part in Perth, as I have already mentioned.

10. The wording of s71 involves a discretion; that is to say, where there is a situation where an action or matter is commenced in a court sitting at a place that should have been commenced in the court sitting at another place, 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 and heard in a case sitting at the place in which it has been commenced. So that the court is in a position where it can in its discretion leave the matter where it is or require that the matter be moved to some other court.

11. I have perused the affidavits in this matter and of course considered the matters mentioned by counsel in their arguments.  It is the case here that all the parties contemplated that the machine involved was for use in Bunbury.  As a result of its installation and use in Bunbury a dispute has arisen as to its efficacy.  In practical terms the evidence as to the making of the contract and the operation of the machine in my view is more aligned to Bunbury than Perth. 

12. Although both defendants will need to call witnesses from Perth, there are more witnesses, in my view, likely to live and work in the Bunbury area, including Manjimup.  The convenience of counsel and solicitors - in other words, coming from Perth - in my view is not as important.  In all the circumstances, I consider that Bunbury is the more appropriate forum and thus the application to transfer the matter from Bunbury to Perth is refused.

13. I note that had I been considering this matter under s72, namely an application which is made after the listing to be heard in a particular court, my decision would have been the same.  So that in all the circumstances I am not prepared to grant the application of the first defendant to transfer the matter from Bunbury to Perth.  The application is therefore dismissed.

14. I will now hear counsel as to the appropriate costs order.