Strike, David v Dive Queensland Inc & Ors [1997] FCA 1429

FEDERAL COURT OF AUSTRALIA PRACTICE & PROCEDURE - Application for transfer of proceedings - whether proceedings should be transferred to District Court of Queensland - relevance of costs to interests of justice - balance of convenience - whether a misleading statement in a telephone conversation will found an action in the place where the recipient of the statement heard it. Trade Practices Act 1974 (Cth) ss 52, 86A(1) Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd [No 2] (1993) ATPR 41-272, refd Sydbank Soenderjylland AS v Bannerton Holdings Pty Ltd (1996) ATPR 41-525, refd DAVID STRIKE v DIVE QUEENSLAND INCORPORATED & ORS NG 837 of 1997 JUDGE: DAVIES J DATE: 17 DECEMBER 1997 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 837 of 1997

BETWEEN: DAVID STRIKE

Applicant

AND: DIVE QUEENSLAND INCORPORATED

First Respondent

WAYNE INGLIS

Second Respondent

DAVID WINDSOR

Third Respondent

CORAM: DAVIES J

DATE OF ORDER: 17 DECEMBER 1997

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The matter be transferred to the District Court of Queensland. 2. The respondent's costs of the hearings on 14 and 28 November 1997 be costs of the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 837 of 1997

BETWEEN: DAVID STRIKE

Applicant

AND: DIVE QUEENSLAND INCORPORATED

First Respondent

WAYNE INGLIS

Second Respondent

DAVID WINDSOR

Third Respondent

CORAM: DAVIES J

DATE: 17 december 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT At the first directions hearing of this matter on 14 November, I inquired whether this matter should remain in this Court as the amount at issue, although not stated, seemed to be modest. The solicitor for the respondents indicated that, in any event, he would seek a transfer of the matter to the Queensland Registry of the Court. When the matter came on for further hearing on 28 November 1997, no evidence was given that the amount claimed justified retaining the matter in this Court. The solicitor for the applicant advised that he was prepared to accept a remittal of the matter under s 86A of the Trade Practices Act 1974 (Cth) to the District Court of New South Wales, but that his client did not have funds to instruct a large firm of solicitors with offices both in Sydney and Queensland and that, if the case were transferred to Queensland, the applicant would be severely prejudiced and probably would be unable to continue the case. An affidavit by the applicant deposed to those facts. The solicitor for the respondents moved for a transfer of the matter to the Queensland Registry of this Court and, in support of the motion, read an affidavit indicating that the substantial events took place in Queensland and that all witnesses to be called on behalf of the respondent resided in Queensland. Section 86A of the Trade Practices Act empowers the Court, upon the application of a party or on the Court's own motion, to transfer a proceeding involving an issue arising under Part IVA or Division 1 or 1A of Part V of that Act. The section provides, inter alia: "86A (1) Where: (a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and (b) a matter for determination in the proceeding arose under Part IVA or Division 1 or 1A of Part V; the Federal Court may, subject to subsection (2), upon the application of a party or of the Federal Court's own motion, transfer to a court of a State or Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding."