PRACTICE AND PROCEDURE - Federal Court of Australia Act - application for change of venue from Perth to Sydney - claim under s.52 Trade Practices Act - representations made and performance of contract in Sydney - respondent incorporated and active in New South Wales - applicant's active in Western Australia and offices in both States - majority of witnesses in New South Wales - applicant's chief witness resident 1n Perth - number of overseas expert witnesses - mere balance of convenience insufficient test ~ public interest - manifest preponderance of convenience required to justify change - place of formation and performance of contract not of itself a significant factor. Federal Court Rules 0.10 r.1, 0.30 Trade Practices Act 1974 s.52 Hodder v Australian Workers Union (1984) 4 FCR 541 Church v Barnett (1871) LUJCP 138 Kings Cross Whisper Pty Ltd v O'Neill (1968) 2 NSWLR 289 Jacobs v Claudis Enterprises Pty Ltd (1985) ATPR 40-51 TVW ENTERPRISES LTD v MAGNA-TECHTRONICS (AUST) PTY LIMITED, MAGNA-TECHTRONICS (AUST) PTY LIMITED v TVW ENTERPRISES LTD WAG 62 of 1986 FRENCH J. PERTH 20 FEBRUARY 1987 aad IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION es ww No. WAG 62 of 1986 BETWEEN: TVW ENTERPRISES LTD Applicant and MAGNA-TECHTRONICS (AUST) PTY LIMITED Respondent and MAGNA-TECHTRONICS (AUST) PTY LIMITED Cross Claimant and TVW ENTERPRISES LTD Cross Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 20 FEBRUARY 1987 WHERE MADE: Perth THE COURT ORDERS THAT: 1. The motion be dismissed. 2. The Respondent to pay the Applicant's costs of the motion in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 62 of 1986 BETWEEN: TVW ENTERPRISES LTD Applicant and MAGNA-TECHTRONICS (AUST) PTY LIMITED Respondent and MAGNA-TECHTRONICS (AUST) PTY LIMITED Cross Claimant and TVW ENTERPRISES LTD Cross Respondent CORAM: FRENCH J. 20 February 1987 REASONS FOR DECISION The applicant is a company incorporated in Western Australia the majority of whose operations are conducted from Perth. It has however a controlling interest in the operations of Satellite Leisure Services Pty Ltd and Club Superstation Pty Ltd, two companies involved in the establishment and presentation of satellite television services to registered clubs in New South Wales, a service which is evidently to be known as "The Club Superstation Service". Early in 1986 the applicant negotiated with the respondent in connection with the possible acquisition of satellite receiving antennae suitable for use in connection with the proposed service. It 1S common ground that in April or May 1986 the applicant agreed to purchase from the respondent 700 RSI Laux Beta Antennae with feed and mount. According to the statement of claim the respondent made certain representations to the applicant as to the performance characteristics and availability of the antennae. In a pamphlet handed by the respondent's managing director, Robert Clemesha to Timothy O'Dea, the applicant's chief engineer, it was claimed that the Beta 9 Antenna:- 1. set new standards in performance and value. 2. had a gain of 48.1 DB on what is known as the integrated Ku-band - this appears to be a measure of the receiving power of the antenna at a given frequency. The respondent is also said to have represented in a written proposal dated 7 April 1986 that a perforated version of the same antenna measured at a frequency of 11.95 gigaherz produced a gain of 47.2 GB. This statement was said to carry the implication that the gain for a full panel antenna at 12.5 gigaherz would be substantially in excess of that figure. Oral representations to like effect are attributed to Robert Clemesha and Barry Lancaster, a systems engineer employed by the respondent. The applicant alleges the various representations were made in Sydney. Clemesha is also said to have promised that the antennae could be delivered within 28 days of order. The various representations so alleged are said by the applicant to have constituted misleading and deceptive conduct in contravention of s.52 of the Trade Practices Act 1974 and entitling it to relief by way of damages under s.82. The gravamen of its complaint appears to be that the antennae did not have the technical characteristics represented and were not available for delivery as promised. In particular it is alleged a testing of certain sample antennae did not produce the requisite gain of 48.1 dB against a frequency of 12.5 gigaherz. The maximum repeatable gain said to have been produced was 46 dB. The applicant further complained that the antennae as assembled in the United States at 30 April 1986 did not have feeds capable of meeting Australian Ku-band requirements. Nor were they able to be delivered within the twenty eight days promised. On 3 June 1986 the applicant rescinded its agreement with the respondent. The respondent denies many of the representations attributed to it. As to the antennae tested, it contends they were not provided by way of an advance shipment but were supplied for use by the applicant for staff training purposes. The respondent now moves for an order transferring the application to the Sydney Registry of this court. In support of its motion it makes the following points:- 1. The respondent is incorporated in New South Wales and carries on business in that State but not in Western Australia. 2. The applicant carries on business in Western Australia but also has an office in the State of New South Wales. 3. Save for one meeting held in Perth on 12 March 1986 all negotiations leading to the agreement to purchase the antennae took place in Sydney. 4. The agreement between the parties was to be performed in Sydney as it was to Sydney that the antennae were to be delivered. 5. Save for Mr O'Dea, the applicant's chief engineer, all Australian witnesses reside in New South Wales. Insofar as there are expert witnesses to come from the United States, it will be more convenient for them to travel to Sydney rather than to have to come on to a hearing in Perth. The last point is contested by the applicant which claims that it will be necessary to call as witnesses three senior officers of the applicant resident in Western Australia. The proceedings have reached the stage where pleadings are closed, and further and better particulars and discovery have been given. The motion for change of venue is in terms brought under 0.10r.1(2)(f£) and 0.30 r.6 of the Federal Court Rules. Order 10r.1(2)(f£) empowers the court in any pending proceeding to:- "Direct that the proceeding be transferred to a place at which there 1S a Registry other than the then proper place. Where the proceeding 1s so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his charge relating to the proceeding to the Registrar at the proper place to which the proceeding 1s transferred." Order 30 rule 6 provides as follows:- "(1) Subject to sub-rules (2) and (3), unless the place of trial has been fixed by the Court, the trial of a proceeding shall be at the proper place. (2) The court on the application of a party or of its own motion may direct that the trial of a proceeding be fixed at a place other than the proper place. (3) In this rule a reference to the trial of a proceeding shall include a reference to any interlocutory hearing in a proceeding." Although the respondent's motion refers to both orders 10 and 30 of the Federal Court Rules, 1t seeks an order that the trial of the proceedings be fixed to take place at the Sydney Registry of the Court. Thus the application falls to be considered under 0.30r.6(2). The term "proper place" is defined in O.lr.4 in the following way:- ""Proper Place" in relation to any proceeding - (a) where there has been no transfer means the place at which the proceeding was commenced; (b) where there has been a transfer means the place to which the proceeding was transferred." The powers conferred by these rules are not in terms governed by any constraint in favour of the place at which proceedings are instituted as the appropriate venue, although the use of the term "proper place" might be thought to suggest otherwise. A number of decisions were cited in argument in favour of the proposition that the choice of venue on such an application is to be determined according to the balance of convenience. Such a rule appears to have been assumed by the New South Wales Court of Appeal as the point of departure in a change of venue application in Kings Cross Whisper Pty Ltd v O'Neill (1968) 2 NSWLR 289, 288. In connection with change of venue in the Federal Court Jacobs v Claudius Enterprises Pty Ltd (1985) ATPR 40-511 involved an application for a transfer from Brisbane to Sydney. At 46078 Spender J. said:- "In my view, on an application pursuant to 0.10r.1(2)(£) it is proper to take into account the residence of the parties, the residence of the witnesses for the various parties; the expense and prejudice likely to the respective parties, the likelihood of delay being a significant consideration, whether there is in respect of the competing suggestions as to venue any possibility of an interference with a fair trial of the hearing and ultimately the balance of convenience having regard to all considerations." On the other hand in Hodder v Australian Workers Union (1984) 4 FCR 541 Pincus J. also dealing with an application for change of venue from Brisbane to Sydney said at 542:- "Having come to the conclusion that there is a slight balance of convenience, as a matter of probability, in favour of a Sydney hearing, the question is whether that is sufficient to justify a transfer to that city. In my as yee woe . See cae wee — we opinion it 1s not. In Church v Barnett (1871) LUJCP 138; LR6CP at 116 the Court of Common Pleas laid down that the court will not deprive a plaintiff of the venue he has chosen unless there 1s a "manifest preponderance of convenience", In my view that 1s a test which is commonly applied; see for example Hobler v Francis (1911) QSR 17. There 1s authority in New South Wales in favour of a requirement that the applicant show "great inconvenience or injustice" as a condition of a change of venue; Lehtonen v Australian Iron and Steel Pty Ltd (1963) NSWLR 323. I prefer the Church v Barnett test. It must often occur that, where proceedings begun in this registry relate to the affairs of an organisation whose headquarters are in some place other' than Brisbane, it will be said that it suits that organisation better to litigate on its home ground. I do not think the court should too lightly accede to that plea, depriving the applicant for substantive relief of his or her chosen venue. To do so would place a significant barrier in the path of people who, in such cases, wish to invoke the court's jurisidction." At first blush an unqualified balance of convenience test has the advantage of logic and simplicity in _ the determination of change of venue applications. There is no obvious reason for giving the applicant's choice of venue special weight. An arbitrary or capricious choice would count' for nothing against the respondent in any event. In my opinion however considerations of expedition and public policy tend in favour of a requirement that more than a mere balance of convenience in favour of a venue should be established in order to justify a change to that venue. In many cases such as the present convenience may be finely balanced. In the progress of a case to trial, circumstances may change. A person formerly thought to be a vital witness may no longer be so. A new witness may emerge and with his emergence the balance of convenience may change. Successive changes of venue might be justified if that test were to be applied. In my opinion public interest requires that there should be demonstrated, as was required in Hodder v The Australian Workers Union (supra), a manifest preponderance of convenience in favour of the proposed change. To put it another way the venue chosen should, when all the circumstances are examined, be seen to be obviously wrong. That test does in effect confer upon the applicant's initial choice a certain advantage in the equation. That advantage springs not from any particular sanctity attaching to his choice but rather from the need to fully justify any transfer. Applying the test, in the terms formulated in Church v Barnett (1871) LJCP 138 and accepted by Pincus J. in Hodder v The Australian Workers Union (supra) I am of the opinion that the applicant has not established a manifest preponderance of convenience in favour of having the trial of the proceedings heard in Sydney. There are witnesses who may be called from both Sydney and Perth. There is inconvenience to the respondent, it is true in having the matter dealt with in Perth. There is inconvenience to the applicant if 1t is heard in Sydney. It may even be that the balance of convenience favours the respondent. However in my opinion it has not on the appropriate test made out the case for change. In coming to this conclusion it should be made clear that I do not consider that the place of formation and performance of the contract, which in this case was Sydney, is a factor which standing by itself weighs significantly in the balance. It may be a factor that is related to and even explains why certain witnesses are to be found in Sydney but taken by itself it adds nothing to the application. It is relevant that both sides have instructed solicitors in their preferred venue but the inconvenience in that case seems evenly balanced and really adds nothing one way or the other. In all the circumstances I propose to dismiss the motion. roeer ' ll. I certify that the preceding ten (10) pages are a true copy of the Reasons for Decision of his Honour Mr Justice French. Associate: Clvyateth Hevcke12011 Dated: aS Feria , /I§ 7 Counsel for the Applicant: Mr M. Bennett and Mr M. McCusker QC instructed by Keall Brinsden Counsel for the Respondent:Mr A. Siopsis instructed by Parker & Parker Date of Hearing: 16 February 1987 Date of Judgment: 20 February 1987