Hodder, E.R. v. The Australian Workers Union [1985] FCA 131

OLD Q5 of 1985 ATI "AVS vee KEY i ANS nn iff NESE MET 2 PINCUS J 7 - 9 APR i985 BRISBANE FaDF A CA" r Ly

IN THE FEDEPAL COURT OF AUSTRALIA ) QUEENELAND DISTRICT FPEG1ISTRY ) QLE 05 of 1985 INDUSTRIAL DIVISION

The application for a change of venue pursuant to Ord.30 R.6 be refused.

QUEENSLAND DISTRICT REGISTRY ) OLD @5 0 INDUSTRIAL DIVISION )

proper place in relation to the proceedings be transferred to

in his work on the practice of the Court submits that a change of

venue will be granted when the party "applying for such can show

that on the balance of convenience ... the venue ought to be

changed ...". It was said on behalf of the applicant that the

The litigation raises the question of the validity of a rule of the union which provides for equal representation of each State branch on the executive council. The basis of the attack, putting it simply, 1s that the State branches with large membership should not have the same representation as the

Although, no doubt, facte illustrative of the results of the present constitution will be placed before the Court, it appears to me unlikely that the outcome of the Litigation will depend upon disputed factual matters. Counsel for Mr Hodder, indeed, said that he expected that it might well be unnecessary for his side, at least in the first instance, to place any material before the court other than the brief affidavit already filed. Nevertheless, there must be some examination of the history and groceedings of the union, necessitating reference to its records. It was not suggested that any récords other than minutes of the Executive Council and the Convention would become relevant and the description of their physical dimensions given to me by counsel for the union made it fairly clear that no great trouble would be involved in bringing them to Brisbane. I assume

that it is unlikely that very old records will become relevant.

Tt was submitted, however, and I think very fairly, that a witness from Sydney, one from Adelaide, and perhaps one or two other witnesses from other parts of Australia, might have to he called on behalf of the union. Accepting this, I have come ta the conclusion that it is probable that the union may well encounter rather qreater inconvenience if the matter stays here than will Mr Hodder, if it 1s transferred to Sydney. To some extent this conclusion is speculative, and I note that the trial

13 to be on affidavit; for all one knows, not all deponents will

Having come to the conclusion that there 19 a slight balance of convenience, as a matter of probability, in favour of a Sydney hearing, the question is whether that 15 sufficient to justify a transfer to that city. In my opinion it ius not. [In

Church v. Barnett (1871) L.R. 6 C.P. at p.116 the Court of Common

Fleas laid down that the court will not deprive a plaintiff of the venue he has chogen unless there is a "manifest preponderance of convenience", In my view, that 13 a test which is commonly applied; see for example Hobler v. Francis (1911) 9.S.P. 17.

There 18 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) N.S.W.R. 323. I prefer

Tt must often occur that, where proceedings begun in this registry relate to the affairs of an organisation whose headquarters are ain some place other than Brisbane, 1t will be said that it suits that organisation better to litigate on its home ground. I de not think the court should toa 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 jurisdiction. In this matter, however, it is enough to say that I am not satisfied that there is the necessary "manifest preponderance

of convenience" in favour of a Sydney hearing. I therefore