— yu NOT FOR GENEFAL DISTRIBUTION IN THE FEDERAL COUFT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G260 of 1986 BETWEEN: BADAS PTY. LIMITED AS TRUSTEE OF THE BADAS FAMILY TRUST Applicant and THE DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: TOOHEY J. 18 Auaust 1986 EX TEMPORE REASONS FOR JUDGMENT It might be possible to dispose of this matter in terms of whether it is premature or otherwise at this stage to consider an alteration in venue. But, 1t seems to me that I should deal with the considerations that have been urged by counsel in favour of retaining Sydney as the venue for the hearing of this application or in favour of transferring 1t to Perth. The application 1s an application under the Administrative Decisions (Judicial Review) Act 1977. It is presently supported by an affidavit sworn by Mr. Girdwood, who is a director and public officer of the applicant. which recites several matters and exhibits a number of documents. Whether Chat will represent the entiretv of the applicant's evidence remains to be seen. though 16 may be assumed, fairly IT thank. that anv other material to be relied upon bv the applicant bv affidavit will have a source in Western Australia. On the respondent's part. some affidavits have been filed by officers of the respondent in New South Wales. But thev are affidavits of a formal nature and do not bear upon the substantive issues likely to arise. It is not clear whether the respondent will file anv affidavit in answer to the material furnished by the applicant; but if such an affidavit is filed, I take 1t that it will come from an officer of the respondent in Western Australia. The significance of those comments is that while the precise course that the application will take has not vet been finally determined, broadly speaking it will take the form of affidavit evidence. It is at least conceivable that deponents may be required to attend for cross-examination. If they are, those deponents will be in Western Australia. The application itself has a strong Western Australian flavour, 1f I can put it that way. in so far as the applicant and the trust. of which the applicant 1s trustee, both have a residence in Western Australia. Western Australia is the origin of the 'returns furnished by the applicant. It is, it would apvear, the origin of decisions taken by the respondent. If that inference cannot fairly be drawn, from what Mr. Dwyer said it is at least clear all inquiries made and investigations carried out have been within the Western Australian office. Those eonsiderations wouid orainarily point co che desirabilisty of the matter being determined in Western Austrailia. Against those considerations Mr. Bloom has araued two general propositions. Une is that the applicant is entitled to choose its venue and, in the absence of evidence that that 1s an inconvenient venue. then the applicant should be permitted that decision. The second argument in broad terms is that the matter, so Far as the applicant is concerned, has been handled by Sydnev solicitors and counsel and that transfer of venue to Western Australia could cause some additional cost to the applicant. As to the first of those propositions, 1t is undoubtedly true as a qeneral proposition. But this motion has to be considered in the light of all the relevant material including those matters to which I have referred. As to the second proposition, it seems to me that. so far as solicitors' costs are concerned, the applicant's solicitors have a presence both in Svdney and in Perth. It is hard to see how additional solicitors' costs would be incurred, bearing in mind that the application with which the Court will be concerned is an application for review and that the Court will not be concerned with the validity of the assessments raised against the applicant. * So in the end it seems to me the consideration most telling in favour of the venue remaining in Perth is some additional cost that would be incurred if counsel had to travel from Sydney to Perth or alternatively costs thrown away if Svdney counsel were not retained and Perth counsel were engaged. That 1s 4, a matt m yr Eo pe caken tnto account. It seems to me that 1t does not kin the scales against the other considerations which [ have mentioned. The character of the matter 1s a Western Australian matter: the residence of the applicant and those associated with the applicant is in Western Australia. The residence for practical purposes or the respondent 1s in Western Australia in that 1t 1s Western Australian officers who would be involved in instructions aiven for the purpose of the application. There is a risk, that mav not be known until quite late in the day, that the deponent of an affidavit may be required to attend for cross-examination. It 1s a risk that could lead to considerable cost and of course considerable inconvenience if the matter were to remain in Svdney. It seems to me that I am sufficiently seized of the way in which the matter 1s likely to proceed. without being able to forecast every step. for me to make a decision on the matter. The decision I make is that the balance of convenience is very much in favour of the matter being heard in the state to which, in a broad and perhaps colloquial sense, 1t belongs. By that, I mean the residence of those associated with the litigation on both sides. I therefore accede to the order sought. I certify that this and the preceding three pages are a true copy of the ex tempore reasons for judgment herein of his Honour Mr. Justice Toohey. Associate / f af Dated: 2 September 1986