Partners Design Australia Pty Ltd v Email Ltd

[1989] FCA 874

JUDGMENT No. ..... .!&..J . . ~ ~ ~

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)	No. G71 of 1989
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B E T W E E N :

PARTNERS DESIGN (AUSTRALIA) PTY

LIMITED

Applicant

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25 J U N 200.5

EMAIL LIMITED & ANOTHER

Respondents

EX TEMPORE REASONS FOR JUDGMENT

-	CORAM: von Doussa J :
21 JULY 1989
In these proceedings, the applicant claims damages pursuant to s.82 of the Trade Practices Act 1974 from the two respondents. Proceedings were commenced in the South Australian Registry on 6 June 1989. Before taking any steps other than entering an appearance the respondents have applied to transfer the proceedings to the New South Wales District Registry of this Court. In support of that application an affidavit has been filed on the respondents' behalf from Duncan William Glasgow.
The applicant opposes the transfer and has filed an affidavit of Scipio John Lipman to resist the order sought. The Parties are agreed that the relevant principles by which this application must be decided are those laid down in National Mutual Holdings Pty Limited & Ors v. Sentry Corporation & Anor
(1988) 83 ALR 434. The parties have drawn attention

to pp.441 and 442 of the report and made reference

generally to the judgment. At p.442 the court said :

"There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the court may exercise its power under

0.30, r.6 either on the application of a party or

of its own motion. The court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place."

And I interpose to say that there is no evidence to suggest that these proceedings have been capriciously commenced in this Registry. I continue :

"At the other end of the scale, a proceeding may have been continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place ."

As I have already pointed out, these proceedings have only	recently been commenced and no such steps have been taken yet in
the South Australian Registry. The court went on :

"The balance of convenience is importnat, but its weight must vary from case to case. 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? It cannot and should not, in our opinion, be defined more closely or precisely."

factors that may be relevant and where there are a number of such factors obviously the court is required to embark upon a weighing exercise, but having regard at all points to the so called starting point referred to in the passage I have quoted.

Mr Glasgow recites a number of matters which have been enlarged upon by Mr Clayton, who appeared for the respondents, this morning. The first is that the three parties are companies, each of which was incorporated in New South Wales. standing alone, it seems to me that that is not a point of much significance. A more important consideration is where those

companies carry on business and where the witnesses to be called

from those companies are presently located. In that respect I note that the general manager of the two respondents is resident in Sydney, but the national sales manager of the respondents, who was one of the parties involved in crucial discussions pleaded in the statement of claim, is resident in Melbourne.

The pleadings allege misleading and deceptive conduct by

the respondents prior to the parties entering into a distributor

agreement for Namco Products. The applicant was to become the	sole distributor in the State of South Australia. The
respondents are the manufacturers and distributors elsewhere of those products. ~t is common ground that some of the conversations alleged as comprising part of the misleading and deceptive conduct, took place in Caringbah in the State of New South Wales. The pleading alleges that the general manager and the national sales manager of the respondents were both present

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at those discussions, as was a representative of the applicant. The pleadings, however, also allege that the same representative of the applicant whilst in Adelaide had further conversations with the representatives of the respondents by telephone. So not all the conduct could be said to have occurred in Sydney.

1         The next matter raised by Mr Glasgow is that the sole distributor agreement that was later entered into by the parties provides in clause 7(g) that the agreement shall be deemed to be entered into in the State of New South Wales and that the agreement shall be governed by the law of that State. Reference is also made to clause 7(f), an arbitration clause, which requires that disputes in connection with the agreement are to be arbitrated in Sydney unless the parties agree to some other location for the arbitration. I agree with Mr Whitingtonls submission that those clauses in the contract are irrelevant because the agreement is extraneous to the cause of action. What is relied upon is misleading and deceptive conduct which occurred before the agreement was entered into and, on the applicant's case, it is because of that conduct being of the character alleged that the applicant entered into the contract. Furthermore, the cause of action alleged is based upon a

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on the proper law of the contract. Commonwealth law, the Trade Practices Act, and is not dependant

Finally, Mr Glasgow's affidavit says that the alleged breaches of the Trade Practices Act occurred in New South Wales. It is not clear to me that that is necessarily so, but I think the more important consideration is, as Mr Whitington has pointed

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not where the breach has occurred but how the breaches are to be proved and where the witnesses and other evidence in that respect are now situated.	~
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~t is important to have regard to the test that was formulated by the court in the National Mutual case. It is, in	I
my view, a test directed to the present situation not the past. ~t is a test largely based on convenience. In the case of witnesses, their convenience is to be judged according to where they are presently located, or are likely to be located at the time of trial, not where they were at the time the particular conduct alleged to constitute the cause of action occurred.
Mr Glasgow goes on to say that most, if not all, of the books and files of the respondents are in Sydney and that the
executives of the respondents who provide instructions in
relation to the matter work and reside in New South Wales. The
answering affidavit of Mr Lipman discloses that the applicant	l
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carries on business in South Australia and its books and records and its officers who would give instructions are in South Australia. That serves to highlight the problem in these proceedings which is that one party or the other is likely to be
fact that their offices are in different places.	inconvenienced wherever the proceedings occur by reason of the	l
Mr Lipmanrs affidavit discloses that the applicant would seek to call seven witnesses, for one reason or another, who are resident in the State of South Australia, and advances arguments based on cost. I am not persuaded that the cost argument,
insofar as it is directed to the cost of legal services or the costs that may be involved in bringing lawyers from one place to another, is a decisive or indeed an important consideration in this case. It seems to me clear that whichever party is required to conduct the proceedings in a different State will incur greater expense than would otherwise be the case. I am not persuaded that the advantages or disadvantages in legal costs of a trial in Adelaide are significantly different from those of a trial in Sydney. The costs, however, of transporting witnesses from one place to another and the relationship of those witnesses to the party intending to call them are more important factors, in my view.	I
It seems to me that a court ought have regard to the inconvenience that would be imposed on witnesses who have no personal attachment to the proceedings who are to be taken from one place to another and required to await their turn to give evidence. Furthermore, there is the expense of transporting them from one place to another, and housing them and remunerating them. The number of witnesses who reside in South Australia identified by the applicant at this stage is considerably greater than the number resident elsewhere which the respondents have
identified as essential to their case.

Mr Clayton, frankly and quite correctly in my view, acknowledged that in many respects disadvantages to one side are balanced out by disadvantages to the other in whichever State the proceedings go forward, for example, in relation to the costs of legal advice and representation and the situation of books and

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other documents.	I agree with him that it is necessary to look
at other factors. He sought to swing the scales in the	i
respondents' favour by reference to clauses 7(f) and 7(g) of the sole distributor agreement. For the reasons I have already given, I do not think that those provisions dictate the outcome.
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l	The agreement is extraneous to the cause of action.
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i	Mr Whitington, on the other hand, refers to the position

of the witnesses. That is a factor in favour of the applicant

having the trial in South Australia. But, at the end of the day, one comes back to the starting point: the proceedings have been commenced in this place and is there any good reason why they should be moved? I am of the view that no such reason has been disclosed. Rather, such reason as there is, weighing one way or the other, favours the retention of the proceedings in South Australia. For those reasons the notice of motion seeking a change of venue is dismissed with costs.

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I certify that this and

the 6 preceding pages are

a true copy of the Reasons for Judgment of Mr Justice

Associate:

von Doussa.