FEDERAL COURT OF AUSTRALIA Gance v Ellis [2005] FCA 833 Federal Court of Australia Act 1976 O 10 r 1(2)(f), O 30 r 6(2) Trade Practices Act 1974 s 52 National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162 Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 at 63 JACK GANCE & ANOR v STUART ADAM ELLIS & ORS NO VID 407 OF 2005 HEEREY J 16 JUNE 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V407 OF 2005 BETWEEN: JACK GANCE and ANOTHER APPLICANT AND: STUART ADAM ELLIS and OTHERS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 16 JUNE 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. This proceeding be transferred to the Queensland District Registry of the Court. 2. The applicants pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V407 OF 2005 BETWEEN: JACK GANCE and ANOTHER APPLICANT AND: STUART ADAM ELLIS and OTHERS RESPONDENT JUDGE: HEEREY J DATE: 16 JUNE 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The respondents apply for an order that this proceeding be conducted hereafter at the Queensland registry of the Court. The application is made under s 48 of the Federal Court of Australia Act 1976 and also under O 10 r 1(2)(f) or alternatively O 30 r 6(2). 2 The factors to be considered are discussed by the Full Court in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162. After discussing the relevant factors their Honours concluded: "The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely." 3 The applicants are owners or operators of a chain of discount chemist stores. There are twenty-two of these stores throughout Australia and a further fifteen are planned within the next twelve months. The applicants' chain operates under the registered trade mark Chemist Warehouse. The respondents operate some seven chemists stores in Queensland, operating under the registered trade mark Good Price Pharmacy Warehouse. 4 In their statement of claim the applicants allege that the respondents have committed the tort of passing off, have engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and have infringed the applicants' trade mark. 5 In my opinion the central "good reason" which the authorities require for a transfer is that all the conduct complained of occurred in Queensland. Insofar as the applicants' complaint is based on their existing reputation or goodwill that will be a reputation or goodwill in Queensland. Whether the conduct of the respondents misled or deceived people will turn on an assessment of the effect of that conduct on the relevant section of the public, namely retail purchasers of goods and services from pharmacies in the vicinity of the respondents' operations: see Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 at 63. In brief, this is a Queensland case. 6 It is noteworthy that in relation to the trade mark infringement claim the statement of claim gives three particulars, two of which concerned alleged incidents of confusion by people in Queensland. The remaining particular concerns a letter from Ms Susan Anido, head of the advertising unit of the Therapeutic Goods Administration. It is said that this indicates a mistake by her because she referred a complaint which was really about the respondents' conduct to the applicants. However, a subsequent affidavit on behalf of the respondents reveals further discussions with Ms Anido which seem to make it clear that the respondents were not involved in that incident. So the pleading rather confirms what one would expect, namely that relevant evidence in this trial would come from Queensland. 7 It is true the administration of the applicants' group is centred in Melbourne and insofar as that concerns internal matters such as financial controls and ordering that seems to have little relevance for the present case. Insofar as it involves the applicants' advertising and marketing that may well be relevant, but there would not seem to be any great hardship in adducing evidence of that at a trial in Queensland. 8 Counsel for the applicants stressed that it is possible to conduct interlocutory proceedings in Melbourne and have the trial in Brisbane. That is certainly true, but it seems to be a course fraught with unnecessary expense and inconvenience. For solicitors in Melbourne to conduct the investigations, brief evidence, inspect documents and the like in Queensland, either directly or via agents in Queensland, would only create duplication and expense. 9 The applicants say, and I accept, that their solicitors, who have acted for them for seven years, are a small Melbourne firm on whom they rely very much. I think, however, that there is no reason why the applicants, who seem to be a substantial commercial operation, could not obtain consistent legal representation in Queensland. 10 For those reasons I will order in accordance with the respondents' motion that this proceeding be transferred to the Queensland District Registry of the court. Sine the respondents have succeeded on this motion, I think the only appropriate order for costs is that the applicants pay the respondents' costs. However, as this has been an ordinary interlocutory application and there is no suggestion that the applicants acted capriciously or improperly in issuing the proceedings in Victoria, I will not make an order that the costs be paid forthwith. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 16 June 2005 Counsel for the Applicant: E Smith Solicitor for the Applicant: Rotstein & Associates Counsel for the Respondent: D Campbell SC with D Eliades Solicitor for the Respondent: WHD Lawyers Date of Hearing: 16 June 2005 Date of Judgment: 16 June 2005