oe not for general distribution 224- wgptics 4 Practica an and — beoreduare Tiade Fitartites Act action under 3.82 ~ommenced in Westecn Auztcalia - application to transfer proceedings to Victor1a - balance of convenience considered. Trade Practices Act 1974 s.82 Cases: Jacobs and anor. v. Claudius Enterprises Pty. Ltd. and anor. (1985) ATPR 40.511 PHILLIP AUSTIN-CROWE and MARION VIRGINIA WINIFRED AUSTIN-CROWE v. FOU TH MANDOL TD. and JO RABATOV No. WA G28 of 1986 MUIRHEAD J. PERTH 6 JUNE 1986 IN TRE PEDEPAL Cok? OF AUSTRALIA WESTERN AUSTRALIA ) No. DISTRICT REGISTRY ) GENERAL DIVISION ) WA G28 of 1986 BETAEEN : PHILLIP AUSTIN-CROWE and MARION VIRGINIA WINIFRED AUSTIN-CROWE Applicants and FOURTEENTH MANDOLIN PTY. LTD. First Respondent JOSEF RABAILOV Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 6 June 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. The motion be dismissed. The first respondent to pay the applicants' costs of and incidental to the application in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. pan ocnegm IN THE OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION sy spear : ara Se wearin, 3 ramp TMs. PEDEDAL wou I POR SONERAL DISDPIBUTION L er eee ot No. WA G28 of 1986 BETWEEN PHILLIP AUSTIN-CROWE and MARION VIRGINIA WINIFRED AUSTIN-CROWE Applicants and FOURTEENTH MANDOLIN PTY. LTD. First Respondent and JOSEF RABAIOV Second Respondent CORAM: MUIRHEAD J. 6 June 1986 REASONS FOR DECISION The first respondent by Notice of Motion filed on 14 May 1986 seeks an order that the proceedings be transferred to the Victorian Registry of this Court. It is apparent from the affidavits filed in support that both respondents desire the matter to be heard in Melbourne. The second respondent isa director of the first respondent. The applicants' cause of action arises out of an agreement for the sale and purchase of a video wholesale business carried on in Perth. Damages are claimed inter alia for fraudulent misrepresentation negligent mis-statement and pursuant to s.82 of the Trade Practices Act 1974. The applicants y2aist the application. I nave considered the affidavits and exhibits riled on behalf of the parties. Basically the application is made on the grounds that if the matter is to be heard in Perth. the first respondent, to use the words of the second respondent in his affidavit filed 14 May "will suffer irreperable, incalculable damage as it will be necessary to close down the first respondent's offices" if the staff are required in Perth to give evidence. There is also some affidavit evidence that two members of the respondent's staff suffer physical ailments which may prevent air travel. I will accept that evidence (contained in the second respondent's affidavit) at face value although it is entirely hearsay and the medical certificates in support have no true evidentiary value. The second respondent has offered to pay the air fares and accommodation and incidental expenses of the applicants and their witnesses to enable them to travel to Melbourne for the hearing. The applicants, who carry on business in Perth, with the assistance of two children contest the application. They have already encountered difficulties associated with the necessity of a change of solicitors. They have instructed solicitors and counsel in Perth, their financial circumstances are difficult and the second applicant's health, upon her affidavit, is far from robust. A hearing date has not yet been fixed and it is unlikely that the hearing will commence within at least the next three = 4 Sayers Ia eorae + +? Bd GQ 'fixed tale. notiriead toa the ta parties well ain advance. am far from satisfied that the necessity of the second respondent and its witnesses attending in Perth to give evidence will cause damage of the deqree sworn to in the second respondent's affidavit. There are regular direct flights between Melbourne and Perth; there will be adequate time to plan means of managing and carrying on the office in St. Kilda, Victoria, where the respondent carries on its principal activities, namely "the production and provision of video tapes on a wholesale basis to agencies in Tasmania, New South Wales, Queensland, South Australia, Northern Territory and New Zealand". The 'substantial hardship' to staff referred to in the second respondent's affidavit is a problem which is commonly encountered by witnesses required to give evidence interstate. If witnesses are too ill to travel other alternatives are available. The courts are mindful of such problems and endeavour to ensure that parties have adequate opportunity of doing justice to their cause. I am well satisfied that the matter should be determined by this Court sitting in Perth, where the applicants reside and carry on business, where the first respondent has a representative, where the business, the source of the litigation, was situate and where the action was commenced. Despite the second respondent's offer to pay the added costs of travel and accommodation, which would be incurred by the applicants in travelling to Melbourne, there are other matters to be considered outlined in the applicants' affidavits and their counsel's submissions. I am satisfied that to direct the hearing to take place in Melbourne will cause considerable personal inconvenience Vedat RADY Ble ata ety Le At : 2TO = ~ eit reel TaMaT. -OR i av ronsidere#d the judament of Soender Ff. in Qooabs v. Claudius Enterprises Pty. Ltd. (1985) ATPR 40.511 and the other authorities cited which relate to changes of venue, applications which raise similar issues for consideration. I am not persuaded that the balance of convenience justifies the order sought, nor amtI persuaded that the first respondent's business will be jeopardised should the matter proceed to trial in Perth. I am concerned however that a transfer of the hearing to Melbourne may do injustice to the applicants who have a prima facie entitlement to proceed in Perth, as the proper place for trial. The motion is dismissed. The first respondent must pay the applicants' costs of and incidental to the motion, in any event. I certify that this and the three preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice Muirhead. Associate ' / / Dated: 6 June 1986 - . eoeeee > ws ee meee ee ee ee se