Rolapak Australia P/L York, G.J.

[1993] FCA 329

327        \qc1\3

JUDGMENT NO. ...11111.1 8188881 .aasaaan a.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	No VG 111 of 1992
GENERAL DIVISION
B E T W E E N :

ROLAPAK AUSTRALIA PTY LTD

Applicant

A N D :

GREGORY JMIES YORK

Respondent

COURT : NORTHROP J

PLACE :	MELBOURNE
W:	10 MAY 1993

24 MAY 1993

FEDERAL ~ u U R T 'JP

EX TEMPORE REASONS FOR JUDGMENT AUSTEACIP

.

The matter before the Court is a motion,

is dated 5 April 1993, in which the respondent is seeking an
order that the venue of the proceedings be transferred from
the Victorian Distrlct Registry to the New South Wales
District Registry, and other orders and directions. The
principles to be applied in motions of this kind have been set

principles is set out at 442: 

out authoritatively and clearly in the case of National Mutual
Holdinqs Ptv Limited v Sentrv Coruoration (1988) 83 ALR 434,
and in particular at 441 to 442. The source of the power to
make the order is quite clear. It is also clear that there is
no real onus one way or the other on a motion of this kind.
The matter is discussed at length under the heading "The

proper test to apply" on page 441. The essence of the

"The balance of convenience is important, 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."

This action was commenced in Victoria on 7 April 1992.

There have been eight directions hearings and a mediation in
Victoria. There have been a number of opposed motions dealing
with the substantive issues arising between the parties.
There has been a change of solicitors for the respondent

occurring in about March of this year. The new solicitors are

New South Wales solicitors. Prior to then, the solicitors for

the respondent were Melbourne solicitors and Melbourne counsel had appeared. The matter is getting very close to trial. The pleadings have closed. Discovery and inspection have almost

been concluded. There may be some small matters still in issue in relation to the pleadings but these are of minor

importance only.	I t is at this late stage that the motion is
brought seeking a change in venue.	I t appears that the main
respondents who conduct a small business at Gosford, north of	grounds to support the motion depend upon the position of the
Sydney; a husband and wife team. A number of witnesses are to be called from New South Wales, and one from Victoria as
far as the respondent is concerned. I t appears that the
essential ground in support of the motion is the convenience to the respondents and their witnesses as far as the hearing is concerned. As opposed to that, the applicant essentially is a Victorian-based firm. It is a company, but essentially
is a two-family partnership. It carries on business in
Victoria, but does distribute goods throughout Australia. The issue of liability and validity of the patent are to be determined as separate issues before the question of damages and the applicant will be calling witnesses from Victoria. So, essentially, it comes down to this question of the inconvenience of the parties and the witnesses to be called. That of itself is not finally determinative of the issues on the change of venue.

Applying the general test enunciated in the National

Mutual case at page 442, the impression I have is that overall

this is a case which can be properly heard in Victoria and I

.

see no sufficient reason to change the venue to New South

Wales. This is a case where no matter where the matter is

heard there is going to be a certain degree of inconvenience

to some of the parties. I take into account what is contained

in the affidavit filed on behalf of the respondent, but

despite that in my opinion this is not a case where the Court

should order that the venue be changed to Sydney.

The order sought in the motion is refused with costs.

Other directions were given.

I certify that this and the preceding two (2) pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable

Mr Justice R.M. Northrop.

ssociate: