ASPLIN and ST BARBARA MINES LTD [1997] IRCA 79

DECISION NO:79/97 CATCHWORDS INDUSTRIAL LAW -. change of venue of HEARING Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170EE, 369, 478, Rules of Court, Order 30 Rule 6(1) and 6(2) Andrew and Frewen Pty Limited v Arrow Limited, unreported decision of 6 June 1990, judgment number 247 of 1990 National Mutual Holdings Pty Limited and others v Century Corporation and another (1988) 88 ALR 434 Queensland v J.L. Holdings Pty Limited (1997) 141 ALR 353 ASPLIN and ST BARBARA MINES LTD WI 1479 of 1996 Before : RITTER JR Place : PERTH Date of Judgment : 26 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1479 of 1996 B E T W E E N: paul leonard ASPLIN

First Applicant

A N D:

AUSTRALIAN WORKERS UNION

Second Applicant

A N D:

ST BARBARA MINES LTD

Respondent

MINUTE OF ORDERS 26 FEBRUARY 1997 PERTH RITTER JR THE COURT ORDERS THAT: 1. The respondent's application for a change in the venue of the trial to enable part of the trial to be heard in Meekatharra be allowed on conditions to be contained in further orders of the Court. 2. There be liberty to apply. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1479 of 1996 B E T W E E N: PAUL LEONARD ASPLIN First Applicant A N D AUSTRALIAN WORKERS UNION Second Applicant A N D: ST BARBARA MINES LTD Respondent REASONS FOR DECISION 26 FEBRUARY 1997 RITTER JR EX TEMPORE JUDGMENT (Revised from the Transcript) INTRODUCTION This is an application by the first applicant pursuant to section 170EA of the former Industrial Relations Act, now called the Workplace Relations Act 1996 (the "Act"). The application commenced before me on Monday 24 February 1997. The respondent made an application on 25 February 1997, which was foreshadowed on Monday 24 February 1997 under section 478 of the Act. The application is that the Court sit in Meekatharra to hear 16 or 17 of the respondent's witnesses. The basis of the application is the suggested cost to the respondent of the hearing taking place in Perth as opposed to Meekatharra. The first and second applicants oppose the respondent's application. There are a number of materials that have been filed before the Court. The respondent filed the following affidavits: 1. Affidavit of Ms O'Brien dated 20 February 1997; 2. Affidavit of Mr Padberg dated 20 February 1997; 3. Further affidavit of Ms O'Brien dated 21 February 1997; 4. Affidavit of Ms Marton dated 24 February 1997; 5. Affidavit of Mr Suckling dated 25 February 1997. The first applicant also provided me with materials in the form of two reports from the surgeon, Mr Sneddon, both dated 25 February 1997. These reports were handed to me by Mr Lourey from the bar table without objection by the respondent. THE POWERS OF THE COURT Section 369 of the Act states: "Sittings of the court are to be held from time to time as required at the places at which the registries of the court are established, but the court may sit at any place in Australia or a Territory." In addition to that, section 478 says: The court or a judge may at any stage of a proceeding in the court direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions, if any, as the court or judge imposes." Order 30, rule 6, subrule (1) and (2) of the Court Rules provide that: "Rule 6 Place of Trial 6(1) [Proper place] Subject to subrule (2), the place of trial of a proceeding is to be the proper place. 6(2) [Other than proper place] On the application of a party or of its own motion, the Court may direct that the trial, or part of the trial, of a proceeding be held at a place other than the proper place." The expression "proper place" is defined in order 1, rule 3 to mean, in relation to any proceeding: (a) where there has been no transfer, the place at which the proceeding was commenced; and (b) where there has been a transfer, the place to which the proceeding was transferred. Therefore in relation to this matter, as the proceeding was commenced at Perth, at the Perth registry, the proper place is Perth. Therefore until the Court exercises any of its powers to change the venue of the trial, the trial is to take place in Perth. THE TEST TO APPLY In relation to the appropriate test to apply in considering the application, I have been assisted by judgments of the Federal Court in relation to the similar Federal Court power. The Full Court of the Federal Court in National Mutual Holdings Pty Limited and others v Century Corporation and another (1988) 88 ALR 434 considered the power of the Federal Court to change venue at some length. At page 441, the Full Court said that: "The power conferred on the court or a judge by section 48 of the Federal Court Act is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the court were to circumscribe the general power conferred by section 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by section 48 recognises the national character of this court. The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of the parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration but not necessarily determinative of each case." The Court continued on page 442 by indicating that: "There was no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere."