United Parcel Service of America, Inc v UPS Wholesalers of Australia Pty Ltd

NOT SUITABLE FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA       )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 365 of 1995
  )
GENERAL DIVISION                 )

BETWEEN: UNITED PARCEL SERVICE OF AMERICA, INC

First Applicant

UPS PTY LIMITED

Second Applicant

AND: UPS WHOLESALERS OF AUSTRALIA PTY LIMITED

First Respondent

VAN KAMPEN HOLDINGS PTY LIMITED T/AS UPS COMPANY OF WA

Second Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 14 August 1995

REASONS FOR JUDGMENT

BURCHETT J.:

In this matter, I have to deal with a contested application to order that the proceedings be transferred to the Perth Registry, made upon the basis that the proper place for the further conduct of the matter is in Western Australia rather than in New South Wales. It appears to be a fairly small dispute arising in respect of the trade mark rights of the applicants, and under s. 52 of the Trade Practices Act. The parties operate in different spheres of commerce, but on the other hand the first respondent has a name which bears
some similarity, quite plainly, to the name of each of the applicants and to the mark.

In my opinion it would be unfair to the respondents to require them to come to Sydney to meet this relatively small claim in relation to their conduct, at least 80 per cent of which seems to have occurred locally in Western Australia, while the balance of their relevant activities has been scattered over an area as far afield as New Zealand. It is not concentrated, even as regards the small balance, in New South Wales. The respondent has its centre of operations in Western Australia. The applicants, on their own evidence, obtain their instructions from the United States, although the second applicant carries on business in New South Wales.

In all the circumstances, I think it is proper to accede to the application; but subject to this: that production of documents pursuant to the directions I have already given in respect of discovery may take place, so far as the applicants are concerned, in Sydney, since the respondents plainly have legal advisers here, at least at the present stage.

I think the costs of the application should be the respondents' cost in the cause.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 20 October 1995

Counsel for the Applicants: Ms S.J. Goddard

Solicitors for the Applicants: Sprusons

Counsel for the Respondents: Ms J.R. Baird

Solicitors for the Respondents: Tan & Tan

Date of hearing: 14 August 1995

CaseChat Overview and Summary

The Federal Court of Australia, specifically the New South Wales District Registry, dealt with a case concerning a contested application by United Parcel Service of America, Inc. and UPS Pty Limited to transfer proceedings from Sydney to Perth. The application was based on the premise that Western Australia would be a more suitable location for the case, given the nature of the trade mark rights dispute and the activities of the parties involved. The respondents, UPS Wholesalers of Australia Pty Limited and Van Kampen Holdings Pty Limited t/as UPS Company of WA, contested the transfer. The case revolved around the interpretation and application of section 52 of the Trade Practices Act, focusing on whether the location of the proceedings should be shifted from New South Wales to Western Australia.

The central legal issue before the court was whether the transfer of the proceedings to the Perth Registry would be fair and appropriate, considering the geographical distribution of the parties' activities and the respondents' operational base in Western Australia. The court needed to assess the convenience of the parties and the efficiency of the judicial process, weighing the respondents' potential inconvenience against the applicants' rights and the overall fairness of the proceedings.

Justice Burchett determined that transferring the proceedings to Perth would be fair under the circumstances. The respondents' primary operations were in Western Australia, and a significant portion of the relevant activities occurred there. The court found it unjust to require the respondents to travel to Sydney for a relatively minor claim concerning their conduct. Justice Burchett also noted that the applicants' activities were not concentrated in New South Wales, and their instructions originated from the United States. The court concluded that the transfer was appropriate, but it allowed for the production of documents in Sydney due to the respondents' legal representation in that location. The costs of the application were ordered to be borne by the respondents.

The court's decision was made considering the geographical distribution of the parties' activities, the respondents' operational base in Western Australia, and the overall fairness of the proceedings. Justice Burchett's ruling effectively balanced the convenience and rights of the parties, leading to the transfer of the case to the Perth Registry. The final orders included the transfer of the proceedings to Perth and the allocation of costs to the respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established