NOT FOR GENERAL DISTRIBUTION IN THE FEDCRAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 93 of 1986 BETWEEN: K. BIGGS ENTERPRISES PTY LTD Applicant and P.E. SYKES AND PARTNERS a: CORAM: FRENCH J. 23 March 1987 EX TEMPORE REASONS FOR JUDGMENT This is a motion whereby the respondent seeks an order that the trial of the action be directed to take place in Sydney in the New South Wales Registry of the Court. The application is one for damages under s.82 of the Trade Practices Act 1974 and was instituted in the Perth Registry of the Court on 18 September 1986. By its statement of claim the applicant sets up that it 1S a company incorporated in Western Australia and carrying on — business in this state. we ce ge MeegeE seem 2. The respondent is a firm of veterinary surgeons which carries on business in New South Wales. Their business 1s said to include the examination of racehorses for the purpose of giving advice to potential purchasers. The applicant alleges that in December 1985 it purchased a thoroughbred colt called Driven, for the sum of $47,500, it being a term of the contract that the sale was subject to the certification by a veterinary surgeon that the horse was suitable for purchase as a racehorse. The applicant says that it requested the respondent to inspect the horse in December 1985 and to advise whether it was suitable for purchase as a racehorse. The statement of claim then alleges that on Wednesday, 18 December 1985 the applicant by its managing director, Mr K. Biggs, telephoned the respondent from Kalgoorlie in Western Australia to inquire as to the inspection of the horse and that in the course of that telephone conversation, an employee of the respondent advised Biggs that the horse was suitable for purchase as a racehorse. In the giving of that advice it is said the respondent was engaged in trade or commerce involving the use of telephonic services and such trade or commerce was trade or commerce among the States of Australia. This plea is evidently set up to attract the extended operation of the Trade Practices Act. The representation is said to have been repeated by a letter dated 20 December 1985 and in the repetition was said to involve the use of postal services, again a plea designed to attract the extended operation of the Act. The applicant says that acting on the advice and representations 1t proceeded with the purchase of the horse, but that the advice and representations were misleading or deceptive in that the horse at the time of the examination suffered from a navicular bone disease rendering it unsuitable for racing, and that as a result of that conduct the plaintiff has suffered loss and damage quantified as the difference between the value of the horse as a racehorse and its present value. In support of the motion, the respondent's solicitor, Mr Wisbey, has sworn an affidavit in which he deposes that he has been informed by the respondent and believes it to be true that:- " ro. "(a) the respondent was at all material times a firm of veterinary surgeons practising and resident in the State of New South Wales; (b) in or about December 1985 for and at the request of the applicant, the respondent examined the thoroughbred colt the subject of the claim and that examination was carried out in New South Wales on eee 19 October 1985; an. -+- (C) that on 18 December 1985 a representative of the respondent advised a representative of the applicant by telephone of the results of the inspection and subsequently issued a certification as to the examination, that certification being issued in New South Wales." ree = tH te le er eee te = ee vee ~ t 4. Mr Waisbey's affidavit goes on to say that the applicant on 27 June 1986 instituted proceedings in the District Court of Western Australia claiming damages for negligence arising out of the examination and certification in question. A conditional appearance was entered to that writ and an application successfully brought in the District Court to set aside the writ on the grounds that the cause of action arose in New South Wales and that jurisdiction to ligitate the dispute rested with the appropriate court in New South Wales. On 18 August an order was made by the Registrar of the District Court setting aside the writ of summons. Following that, the applicant commenced the present action. Mr Wisbey''s affidavit says that at the trial of the action the respondent will be calling 4 witnesses, including the senior lecturer and the associate professor in the Department of Veterinary Clinical Studies at the University of Sydney, and that it would cause considerable inconvenience to the Department if it became necessary for those persons to be obliged to attend Perth for a trial of the action. It is submitted therefore that it would be just and proper and more convenient to the Court and the parties that the trial of the action take place in Sydney. a 5. Apart from the two expert witnesses referred to, Mr Wisbey informed the court that two representatives of the respondent who reside in New South Wales would be giving evidence. In response, Mr Ainslie has filed an affidavit based on information given to him by Mr Biggs, a director of the applicant, and which he says he believes to be true. That affidavit 1s to the following effect:- (a) That at the time that Biggs requested' the examination of the colt, the respondent was aware the colt was, if purchased by the applicant, to be transported to Perth; (b) The representations that the colt was suitable for purchase as a racehorse was made to the applicant on Wednesday, 18 December 1985 after the relevant telephone conversation; (c) The certificate was posted to the applicant in Western Australia; {d) The applicant will be calling approximately 6 witnesses, four of those witnesses being veterinary surgeons who all practice and reside in Perth, Western Australia; and {e) The action is as far as the applicant is concerned, in all respects ready for trial. I have already had occasion in the matter of TVW Enterprises Pty Ltd v Magna Techtronics (unreported French J. 20/2/87) to review the authorities relevant to motions for change of venue and the test as accepted in that case, following the test adopted by Pinkus J. in Hodder v The Australian Workers Union (1984) 4 FCR 541, requires the proponent of a change of venue to establish a manifest preponderance of convenience in favour of that change. 6. This, has the effect of conferring some advantage on the venue chosen by the applicant but that is an advantage that arises, not because of any particular sanctity attaching to that choice, but from public interest considerations that support the application of a test which requires the establishment of a manifest preponderance of convenience rather than a mere balance of convenience, and convenience, I think, 1s the critical and relevant test in a case of this kind. The place of formation of the contract and the place at which a cause of action might arise at common law, unless bearing upon the question of practical convenience in the sense to which I referred in the TVW case, have really very little weight in determining the outcome of the particular motion. In the present case the horse, the subject of the action, is located in Western Australia. The applicant carries on business in this state; 4 of its witnesses will be veterinary surgeons who practice and reside in Western Australia, and presumably insofar as any principals of the applicant are called, it would appear that they also reside in this State. On the other hand, the members of the respondent partnership carry on their business in New South Wales and have arranged to call two expert witnesses who also reside in that State, although significantly I note, that in Mr Wisbey's affidavit, it is simply said of the requirement to call those = sot, > mts - OT Re ee Tt ———--- cree ee re SEF dao od Grit thea! Baer realtone eb ee a et ed SO re eet a 7. expert witnesses to give evidence in proceedings 1n Perth, that it would cause considerable inconvenience to the Department. Although 1t 1S not said, I suppose one can infer, that it would also be an added burden to the respondent, though presumably recoverable in costs in the event of a successful defence of the proceedings. After a consideration of the evidence, while the balance of convenience seems to be fairly even as between the parties, I am not satisfied that any manifest preponderance of convenience has been demonstrated which would warrant the making of the order sought. That 1S not to say it may not be possible to arrange for evidence of a particular witness to be taken in New South Wales if the circumstances warrant it. However applying the test that I have already referred to, this motion must be dismissed. The motion for change of venue will be dismissed and there will be an order that the respondent pay the applicant's costs of the motion. I will make the following directions:- 1. The applicant apply to the Registrar within 14 days for an appointment to list the matter for trial. 2. There be liberty to either party to apply for directions on 48 hours notice. 8. I certify that the preceding seven (7) pages are a true copy herein of the Reasons for Judgment of his Honour Mr Justice French Associate: Lhigilodn Werder Date: WE Apret [FE 7 Counsel . for the Applicant: Mr R.J. Ainslie instructed by Mallesons Stephen Jaques - for the Respondent: Mr J. Wisbey instructed by H.J. Wisbey & Associates Date of Hearing: 23 March 1987 Date of Judgment: 23 March 1987