Quinta Radisson Pty Ltd v Trinkor Pty Ltd
[2005] VSC 259
•27 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5266 of 2005
| QUINTA RADDISON LTD | Plaintiff |
| v | |
| TRINKOR PTY LTD and ANDREW NEIL POWER | Defendants |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2005 | |
DATE OF JUDGMENT: | 27 June 2005 | |
CASE MAY BE CITED AS: | Quinta Raddison Ltd v Trinkor Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 259 | |
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PRACTICE COURT – Transfer of proceeding – s.5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Minahan | Cornwall Stodart |
| For the Defendants | Mr C.R. Northrop | Eggleston Mitchell |
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HIS HONOUR:
This is a summons for a transfer of proceeding from this Court to the Supreme Court of Western Australia pursuant to s.5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987. The summons was filed on 11 May 2005. The proceeding is a passing-off action.
The summons calls upon sub-paragraph (iii) of s.5(2)(b), namely, that it is in the interests of justice that the relevant proceeding be determined by another Supreme Court than this Court. There is no present interstate proceeding and no jurisdictional obstacle to the matter being heard in Victoria, where presently it is vested, but rather, the application propounds that it is in the interests of justice, as contemplated by BHP Billiton v Schultz & Anor[1], that the appropriate forum or the natural forum or the jurisdiction having the real and most substantial connection is that of Western Australia rather than of Victoria.
[1][2004] HCA 61 at [14] per Gleeson CJ and McHugh and Heydon JJ.
The proceedings were commenced by writ filed in this Court on 30 March 2005. The statement of claim was amended by an amended statement of claim filed 8 June 2005.
A conditional appearance was filed on behalf of the defendants on 27 April 2005.
The amended statement of claim, in relevant part, pleads that the plaintiff is a corporation incorporated pursuant to the laws of the United Kingdom. Pausing there, that is a central fact in the adjudication of this summons - that the plaintiff is a corporation not incorporated in Victoria or in Australia but in the Untied Kingdom. It is engaged in the business of supplying engineering equipment and parts to heavy industry and has been engaged in that business in Australia since 1984. The second relevant fact is that the business has been conducted Australia-wide, not concentrated in Victoria, although, in circumstances to which I shall come, there is an agent of the plaintiff in Victoria. It is further pleaded that the plaintiff is the possessor of a reputation in the brand and trademark Quinta Raddison within Australia as well as internationally, in the provision of general engineering equipment.
The amended statement of claim proceeds that between January 1987 and June 1987 the plaintiff appointed the second defendant as the Australian agent for the plaintiff in the marketing of the plaintiff’s products and services, which is described as “the appointment”; that in consideration and performance of the appointment, between the time of the appointment and early 2000 the second defendant acted as agent for the plaintiff, representing and promoting the business and the brand Quinta Raddison and its trademark; and that during the continuation of the appointment, the plaintiff acquired a valuable reputation in the brand and trademark Quinta Raddison in Australia in connection with the business and the provision of engineering goods and services. The appointment was terminated in January 2000 by the second defendant. In the epicentre of the amended statement of claim, paragraph 7, the passing off is pleaded.
The first defendant is incorporated in Western Australia. The second defendant is a director of the first defendant.
The relief which is sought in the prayer on behalf of the plaintiff is that there be a declaration that the plaintiff is a beneficial owner of the name Quinta Raddison Australia; a declaration that the first and second defendants hold the name Quinta Raddison or Quinta Raddison Australia as constructive trustees of the plaintiff; a permanent injunction restraining the use of those names by the first and second defendant; an order requiring the first or second defendant to transfer any registration or rights in and title to those names to the plaintiff; a permanent injunction restraining the first defendant from passing itself off as it is alleged it has done, and also the second defendant; and, not insignificantly for the purpose of the present application, an order for account of profits; alternatively, damages; and consequential relief.
The address of the plaintiff is Colchester, Essex, United Kingdom, service on solicitors in Melbourne. The address of the first defendant, Trinkor Pty Ltd, is Perth, Western Australia, and of the second defendant also Western Australia.
A number of affidavits have been filed in relation to the proceeding on behalf of the first defendant in support of the summons: one, of the director of the first defendant (and himself the second defendant) Mr A.J. Power, sworn 11 May 2005 in Perth, Western Australia, with exhibits thereto; and a supplementary affidavit by Mr Power sworn 13 June 2005, which also is in response to an affidavit of Mr A.J. Muir of 2 June 2005. In response to the summons and on behalf of the plaintiff, is filed an affidavit of Mr A.J. Muir, managing director of the plaintiff, sworn on 2 June 2005 in Colchester, United Kingdom, which is in response to Mr Power’s first affidavit, as well as in support of the position of the plaintiff in relation to the summons; and modified as to paragraph 19 by paragraph 5 of an affidavit of Mrs L.V. Ford, consultant solicitor for the plaintiff.
In the affidavit of Mr Muir sworn 2 June 2005, the history of the matter is set out. He deposed that the plaintiff since 1984 has had and continues to have a business identity in Australia. It has a trading presence under the name Quinta Raddison with Mr Andrew Power as its agent. It previously acted in Australia through another agent. Mr Muir deposed that the plaintiff now has a new office in Victoria and a valuable customer base in three States, and also a resident of Victoria, Mr Tony (sic) White, running the Australian operation. In paragraph 28 of Mr Muir’s affidavit he set out the nexus with Victoria which is relied upon by the plaintiff in the following terms: that the plaintiff’s Australian representative, Mr Andrew White, is based in Melbourne and will be called to give evidence at trial; the plaintiff’s Australian representative prior to Mr White’s engagement, which was in April 2005, was Mr G. Morris, who resides in Victoria, and he will be called to give evidence at trial; the plaintiff’s business records including accounting records kept in Australia are located in Melbourne and will be put in evidence at trial; the plaintiff’s Australian accountants, Messrs Evans Buchanan, are located in Melbourne and will give evidence at trial; a number of the plaintiff’s major clients, such as Western Mining Corporation and the Geelong Refinery, are based in Victoria and it is intended to call some of those clients in relation to some of the issues in the matter; and the plaintiff does not have a representative in Western Australia, nor does the plaintiff retain any documentation in Western Australia in relation to its Australian operations.
In support of the summons, the primary affidavit of Mr A.J. Power, sworn 11 May 2005, likewise sets forth the history of the matter, and I shall return to it. In his supplementary affidavit sworn 13 June 2005, and particularly in paragraphs 5 to 10, Mr Power sets forth the nexus with Western Australia and the lack of nexus with Victoria relied upon in support of the relief sought in the summons. The following is deposed, commencing with paragraph 5. Mr Power is a director of both Supply Dynamics Pty Ltd, a related company, and Trinkor Pty Ltd, is a resident of Western Australia and all documents are kept within Western Australia; Mr M. McGowan, a director of Trinkor, is a resident of Western Australia and is familiar with the events commencing in late 1999 to the present; Mr Paul Taylor, accountant of the firm Paul Taylor & Co, who are accountants to the two companies, are both resident and conduct their business in Western Australia; all the documents relating to these companies are in Western Australia and that is a continuing engagement; and Mr J.C. Stacey, company secretary for the first defendant, is a resident of Western Australia and carries his business on there and is a company secretary since its incorporation. The first defendant proposes to call those witnesses at trial. Mr Minahan, for the plaintiff, has submitted that Mr Tracey would not be a significant witness but rather a formal witness only. Next, Mr Power’s wife, Ms Gillian Power, was present during some of the conversations in late 1999. Again, Mr Minahan has suggested she is, at the best, peripheral. Finally, employees of Quinta Raddison Australia, being two directors and seven employees who deal with customers on a regular basis and are familiar with the operations of the business, all reside in Western Australia and some of them may be called at trial to confirm the business operations of Quinta Raddison Australia. Again, Mr Minahan has submitted that they are peripheral, at best, to the elicitation of proofs in the substantive proceedings.
Mr Power further deposed that all the business records in relation to the companies are kept in Western Australia and he set forth the burden of costs which would be imposed upon the company and its witnesses if the matter were to be heard in Victoria. However, more significantly, he put that the defendants operate their businesses from Western Australia; not only do the witnesses reside in Western Australia but the documents relating to the proceeding are all kept in Western Australia by the defendants; and, as I have noted, in the prayer for relief on behalf of the plaintiff an accounting is sought.
Relevant authority governing the determination of this proceeding is well known and does not need rehearsal by me. The basal criteria are set forth in BHP Billiton Ltd v Schultz & Ors[2], wherein, in particular in paragraph 14 in the judgment of the majority, Gleeson CJ and McHugh and Heydon JJ, relevant criteria are stated as follows:
“There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a ‘clearly inappropriate’ forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.”
Their Honours in paragraph 17 reflect upon the traditional criterion that the location of the defendant is a central matter in relation to the determination of jurisdiction, referring in particular to John Pfeiffer Pty Ltd v Rogerson[3]. Those criteria, as I say, are well known and need no further elaboration.
[2][2004] HCA 61.
[3](2000) 203 CLR 503 at 517.
A matter which is not so clear is whether there is an onus of proof upon an applicant seeking the removal of a matter. In Ewins v BHP Billiton Ltd[4] Gillard J stated that in his view, despite what was said by Gummow J, in his judgment (in which Hayne J agreed) in Schultz at paragraph 71, an applicant does carry a burden albeit a low one.
[4][2005] VSC 4 at [23].
In Schultz Gummow J had stated:
“ … it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.”[5]
[5]At [71].
Gillard J in Ewins stated:
“In the vast majority of cases seeking a transfer, the burden will seldom be of any importance. Nevertheless, where the factors favouring a transfer and those against are equal, the burden of proof will have a part to play.”[6]
I note the expression “equal” in that respect. Harper J in Bridge and Marine Engineering Pty Ltd v Taylor and Austrack Project Management Pty Ltd[7] reached a like conclusion, referring to an earlier judgment of Gillard J in McKee v Van Haften & Anor[8]. Finally, Warren J (as then she was), in Ross Mollison Group Pty Ltd & Anor v The Really Useful Company (Aust.) Pty Ltd & Anor[9] found that the original choice of forum criterion ought not stand alone as the determinative factor: it is a factor which ought be considered in the context of the reasons underlying the original choice of forum and on that basis forms part of the balancing process. She concluded that there was an onus.
[6]At [23].
[7][2002] VSC 60 at [28] and [29].
[8][2001] VSC 251.
[9][2000] VSC 256 at [22].
I must say, analytically speaking, that I think the view of Gummow J in Schultz has much to commend it. But, given that I am sitting in the Practice court with the pressure of business of it, I would be loath not to follow the practice as evidently it is in Victoria as stated by Gillard J, Harper J and Warren J (as then she was). Accordingly I proceed upon the basis that there is an onus of proof, albeit a low one, in the circumstances of such an application as this.
In my view this application has clearly been made out. I consider that it is in the interests of justice, as stated by the majority in BHP Billiton v Schultz, that the matter be removed from this Court and be transferred to the Supreme Court of Western Australia pursuant to s.5(2)(b)(iii) of the Act. I consider the determining factors are these. The plaintiff has a limited connection with Victoria, simply through the agent, but is substantially an Australia-wide operation, not a Victorian operation. Second, the plaintiff is a United Kingdom company, not an Australian company. Third, both defendants reside in Western Australia. Fourth, to the extent that negotiations did occur, historically they occurred in Western Australia; and the agreement was signed in Western Australia. Fifth, and significantly, the business records of the defendants are kept in Western Australia, covering a substantial period of time; and the plaintiff in this case seeks an accounting. Sixth, numerous witnesses likely to be called by the defendants reside in Western Australia. Finally, and substantially, the plaintiff’s connection relevant to this proceeding as a party to Victoria is attenuated. The history and substance of the claim has a much less substantial connection with Victoria than the defendants have with Western Australia. Applying the criteria expressed in the majority in Schultz at [14], howsoever expressed, it is my view that the appropriate forum, the natural forum and the real and most substantial connection is with Western Australia.
For those reasons, I order pursuant to s.5(2)(b)(iii) that the proceeding be transferred out of Victoria to the Supreme Court of Western Australia.
I should have said in the judgment, and I now add, other relief was sought, but I have directed this judgment to the epicentre of the proceedings in the Practice Court, namely, the removal of jurisdiction.
I will make an order in the usual terms, that the defendants’ costs of this s.5 proceeding be paid by the plaintiff.
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