Sun Wah Marine Products (China) Trading Company Ltd v Wistane P/L t/as Golden Bay Seafoods

[1994] FCA 769

769 9%

JUDGMENT No. ..... , ..... ,... J ........ ..

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA 1

NEW SOUTH WALES DISTRICT REGISTRY) NO. NG 643 of 1994

GENERAL DIVISION

BETWEEN :

SUN WAH MARINE PRODUCTS

(CHINA) TRADING COMPANY LIMITED

Applicant

AND:

WISTANE PTY LIMITED T/AS

GOLDEN BAY SEAFOODS and ANOTHER

Respondent

CORAM:	SACKVILLE J.
PLACE :	SYDNEY  RECEIVED
DATE :	14 OCTOBER 1994  2 5 OCT 1994

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

REASONS FOR JUDGMENT REQISTRY

HIS HONOUR: This is the first return date of proceedings brought by Sun Wah Marine Products (China) Trading Company Limited against Wistane Pty Limited and Kenton Binfield Teede, the first and second respondents respectively. Mr Rigby, who appears on behalf of the respondents, has sought orders that the proceedings be in effect transferred to the Western Australian Registry of the Court pursuant to the provisions of s.48 of the Federal Court Act, 1976 and Order 10 rule 1(2)(f) Federal Court

No notice of motion has been filed, but I am told that Mr Rigby

Eukas.

or his firm provided a copy of an affidavit of M r Teede in support of a foreshadowed application for orders of the kind to which I have referred. In any event, Mr Argyropoulos, who appears for the applicant indicated that he had no objection to the application being dealt with today.

The application seeks relief under the Trade Practices Act 1974. The allegations made in the statement of claim are that the applicant is a company incorporated in Hong Kong and is an importer/exporter and distributor of seafood. It is alleged that the first respondent is a company with a registered off ice in Western Australia conducting business as the supplier of seafood products. The second respondent is alleged to be a director and employee of the first respondent.

The statement of claim alleges that, on a number of separate occasions, the first and second respondents represented to the applicant that the first respondent would supply to the applicant by sea certain quantities of Western Australian origin block frozen scallops, at a certain price. The representations are

said in each case to have been made by letters faxed to the	applicant in Hong Kong. The statement of claim goes on to allege
that in reliance upon the representations, the applicant entered into certain agreements to on-sell the scallops to purchasers within Hong Kong, at prices higher than those that had been agreed to be paid by the applicant to the first respondent.
It is also alleged that the second respondent was knowingly concerned in what is said to be the misleading and deceptive conduct of the first respondent. I should add that it is, of course, alleged that the representations made by or on behalf of the first respondent were in breach of the Trade Practices Act by reason of their misleading or deceptive character.
At this stage no defence has been filed and the allegations in the statement of claim are simply allegations. Nonetheless, the application has to be dealt with on the basis of the material currently before the Court.
Mr Rigby relied upon the affidavit of Mr Teede to support his
case for a transfer of the proceedings. That affidavit provides evidence of the following matters. First, the respondent's registered offices in Western Australia and its business activities are based in Western Australia, being carried out from Maddington in that State. It does not carry on business in New South Wales. Secondly the applicant carries on business in Hong Kong. The affidavit deposes to Mr Teede's belief that the applicant does not have any office or business address in Australia. I should interpose here that Mr Argyropoulos asserted
of agency arrangement in Sydney, but there is no evidence of this from the bar table that the applicant had entered into some kind
before the Court. Thirdly, negotiations took place between the first respondent and the applicant. Those negotiations occurred in the form of letters sent from Maddington in Western Australia to Hong Kong and from Hong Kong to Maddington. Fourthly, if discovery is to take place, all the respondent's documents are located in Western Australia. Mr Teede also deposes to his belief that all the applicant's documents are located in Hong Kong and there is no evidence to the contrary before the Court. Fifthly, the affidavit suggests that evidence will be required on behalf of the respondents from Mr Teede himself and from expert witnesses, all of whom will be located in Western Australia.
It is not entirely clear to me at this stage of the proceedings why expert evidence will be required, but it is perhaps not unreasonable to expect that there is at least a real chance of such evidence being called. All the evidence on behalf of the respondents, so far as appears fromthe material presently before me, will be from witnesses located in Western Australia. At this stage it appears that any witnesses to be called on behalf of the applicant will be from Hong Kong. In any event there is no evidence that witnesses for the applicant will be from any place in Australia other than Western Australia.
Mr Rigby has drawn to my attention the principles set out in
National Mutual Holdinas Ptv Limited v Sentrv Cor~oration (1988) 83 ALR 434. In particular, he has directed my attention to the
test set out in the judgment of the Court (at 442):

"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."

On the material available to me, there is no significant connection between these proceedings, either in the way in which they have originated or in the manner in which they are likely to be conducted, with Sydney or New South Wales. The only contact with Australia so far as the background to the case is concerned and as far as the likely evidence is concerned, is with Western Australia. Discovery will involve material located in Western Australia and, presumably, in Hong Kong. Nothing has been adduced by way of evidence on behalf of the applicant to suggest any reason of convenience, expedition or expense that would warrant the case being continued in the New South Wales District Registry. No urgent reason has been given by Mr Argyropoulos to support the proceedings being continued in the New South Wales Registry.

In these circumstances, having regard to the principles stated in National Mutual v Sentry Cor~oration, it seems to me that the appropriate course to ensure the orderly and efficient conduct of the court's business is to direct that the proceedings be transferred to the Western Australian registry of the court. Accordingly I make an order to that effect.

I certify that this and the preceding 4

pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. /

Associate: . F& '

Dated: 14 ~stober, 1994

Heard :	14 October 1994
Place:	Sydney
Decision:	14 October 1994
Appearances:	Mr Argyropoulos of Constantine G Pavlis &
CO, Solicitors, appeared for the applicant.
Mr S.J. Rigby of Sly & Weigall, Solicitors, appeared for the respondents.