Paul Mitchell Systems (Australia) P/L v Paul Mitchell Systems Pte Ltd

[1993] FCA 481

PAUL MITCHELL SYSTEMS (AUSTRALIA) PTY LTD v. PAUL MITCHELL SYSTEMS PTE LTD and
ANOTHER
No. WAG123 of 1991
FED No. 481
Number of pages - 3
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J(1)

CATCHWORDS

Practice and Procedure - change of venue - proceedings part-heard in Perth - application to continue hearing in Sydney - previous application for change of venue refused - no sound reason to continue proceedings in Sydney.

National Mutual Holdings Pty Ltd and others v Sentry Corporation and others 83 ALR 434

HEARING

MELBOURNE, (Telephone Hearing) 12 July 1993

#DATE 12:7:1993

Mr J. Nicholas (instructed by Allen Allen and Hemsley) appeared for the respondents in support of the motion.

Mr D. Solomon (instructed by Solomon Brothers) appeared for the applicant in opposition to the motion.

ORDER

The Court orders that:

1. The respondents' notice of motion dated 25 June 1993 be dismissed;

2. Costs be reserved;

3. The trial of the separate questions continue in Perth on 10 August 1993.

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

JUDGE1

OLNEY J It goes without saying that the Full Court of the Federal Court has in National Mutual Holdings Pty Ltd and others v Sentry Corporation and others 83 ALR 434 (Sentry) dealt with the principles that apply in the present circumstances and relevant parts from p 442 of the judgment have been referred to. However, the two passages need to be taken together. It is patent that in Sentry the passage that Mr Nicholas quoted from p 442 at lines 20 to 24 deals with the question of the balance of convenience which in earlier cases had been given a greater degree of importance than the Full Court at the end of the day thought it should be given. However, that having been said, every case has to be decided upon its own merits and nothing in the principles that have been referred to makes it any easier to determine a borderline case.

1. I should say at the outset in dealing with the question of the Court's convenience that in accordance with the policy of the Court and the general philosophy of the Act which has established a national court, there is nothing about this case which indicates that the Court's convenience or its efficiency is in any way affected by the fact that a Melbourne-based judge is hearing the case. The Court will make a judge and the Court facilities available at the appropriate place at the right time and that is not a factor that in any way weighs in the consideration of the motion for change of venue.

2. It is true, as has been said by Mr Solomon, that the proceeding has continued for a considerable time and, consistent with Sentry, due weight ought to be given to the fact that the proceeding has continued in the Perth Registry from the outset (notwithstanding efforts on the part of the respondents for the venue to be changed) and indeed the trial of the separate issues has thus far been held in Perth and is nearing its end.

3. In dealing with the general question of the interests of the parties, the first matter that is normally considered is the question of the availability and convenience of witnesses. The only witness now involved is Mr Lau, the second respondent, a resident of Singapore, who is at present under cross-examination. I can accept it as fact that when one is travelling from Singapore, in terms of time and cost, it matters little whether one travels to Sydney or Perth. It may be that Perth is closer and less expensive but if that is not so, the difference is marginal and in my view the question of whether it is more convenient for Lau to travel to Perth or to Sydney is not a factor that weighs at all in the balance in this case. Another matter relating to the convenience of Lau is said to be that if the hearing is concluded in Sydney, he could whilst there attend to other business. That, in my view, is not an appropriate consideration in dealing with the balancing of interests as between the parties and is a fact which is completely irrelevant to any consideration of the question now before me.

4. The main matter of contention is that of cost. It is said for the respondents that it would be more expensive for Lau and his legal team to go to Perth than it would be for the applicant and its legal team to go to Sydney. But when one comes to analyse the matter, it seems to me that, given that Mr Solomon, if travelling to Sydney, would reasonably be expected to take an instructor with him and could reasonably be expected to engage what secretarial or other help he would require whilst in Sydney, the only difference between the parties is that the respondents have chosen to brief two counsel rather than one and that the obvious nett extra cost in travel is related to the additional member of the legal team engaged by the respondents. And that, in my view, ought not to be a reason for concluding that the interests of the respondent would in some way be prejudiced by a refusal to change the venue or perhaps more appropriately, by insisting that the hearing continue in Perth.

5. There are a number of other issues that have been raised. The respondent has in the past sought a change of venue and the Court has ordered that the hearing of the separate questions be tried in Perth. Nothing has been raised on this motion to suggest that the basis for that decision is no longer valid and in those circumstances, in terms of the passage that Mr Solomon referred to at p 442 lines 8 to 19 of Sentry, there does not appear to be a sound reason to direct that the proceedings be continued elsewhere. Another point raised by the respondents is that the respondents believe that if the applicant is unsuccessful, and is ordered to pay costs, it may be unable to do so and hence would be unable to meet the extra cost which the respondents will have to incur if they are to be required to continue the hearing in Perth rather than in Sydney. This submission is in the nature of an application for security for costs although it is not put that way but if the ability of the applicant to meet any costs ordered against it were a matter to be considered then I think it appropriate that the considerations that apply to an application for security for costs ought to be taken into account. If that were done and the applicant is indeed impecunious which the applicant denies but the respondents assert to be the case and the ordering of security for costs would effectively deny the applicant the opportunity to litigate its case, in accordance with accepted practice, the Court would be unlikely to order it to provide security. I know the two situations are not entirely analogous but I do think that the applicant can take some degree of comfort from the fact that an application for security for costs has previously been denied. Nothing has been put to suggest that any other conclusion would be reached if such an application were renewed now.

6. The real nub of the issue now before the Court is that the hearing has taken longer than anticipated. According to the affidavit material before me, the estimate of five days for hearing the separate questions was agreed to by the parties. It was not something which was imposed by one party upon the other. The fact that the hearing has gone on longer than the original estimate is not a matter which establishes a sound reason to direct that the proceedings be conducted elsewhere. Nor is it the case that the conduct of the case thus far by the applicant has in some way led to an unreasonable blowing-out of the time consumed by the hearing. I have made an analysis of the hearing and it seems to me that unfortunately much time was spent in dealing with objections to the statements of evidence tendered by both parties. It may well be that if that time had not been taken up, the examination of the witnesses could well have been concluded within the time allocated. Having regard to all of the circumstances and having taken account of the affidavit material and the submissions made, I am unconvinced that a reason has been established to justify a change of location for the continuation of the hearing. In my view the interests of the parties are fairly evenly balanced and that being the case I will refuse the application. The appropriate order should simply be that the notice of motion be dismissed and the costs of the motion be reserved. The trial of the separate issues will continue in Perth on the 10th of August 1993.