Relevant Principles
8 The principles to be applied in exercising the discretion conferred by s 48 are not in dispute. The leading authority is the decision of the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. At 162, the Court said:
'The power conferred by s 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 weight those factors in each case. Residence of 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. A party commences a proceeding by filing an application in a particular registry of the court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.
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.'
9 Without exception, these principles have been applied in subsequent cases of which several were referred to by both parties.
10 In the present case it is not suggested that the applicant's choice of the New South Wales Registry was capricious or irrational. The applicant is based in Sydney and its 36 franchises are located in New South Wales.
11 This being the case, it seems to me that the principles referred to above require me to be satisfied that there is sound reason to direct that the proceedings be conducted or continued elsewhere than in the New South Wales Registry. In other words, a sound reason why the venue should be changed.
12 The following reasons were put forward on behalf of the respondents for a change of venue:
(1) The alleged offending conduct has occurred in Queensland although it was conceded that this was not of critical significance. Indeed, in Esco Corp v Wundowie Foundry Pty Ltd [2003] FCA 587 Branson J expressed the view at [3]:
'However … the place of an alleged infringement of an intellectual property right may not, of itself, be a compelling, or even a powerful, factor so far as the identity of the most suitable Registry for the proceeding is concerned. The place where the alleged infringement took place might, in a particular case, be almost fortuitous. Much will depend on the particular circumstances of the case. In this case I conclude that the place of the alleged infringement is only one factor to be evaluated, together with others, in determining the most suitable place for the proceeding to be conducted.'
(2) The fact that some seven affidavits have been filed on behalf of the respondents by persons all resident in Queensland. However, it is pointed out by the applicant that six of these affidavits are of one page each and that none of these witnesses will be cross-examined. The only witness to date who the applicant proposes to cross-examine is the third respondent.
(3) The fact that one of two witnesses upon whom the applicant proposes to rely resides in Queensland. In my view, as a consideration going to balance of convenience, this is equivocal.
(4) The respective financial strengths of the applicant and the respondents. However, the respondents did not seek to support their alleged financial inferiority by reference to any evidence.
(5) The anticipated cost of flying the respondents' witnesses to Sydney to give evidence (together with accommodation). In response, the applicant says that the cost will involve one witness as none of the others will be required for cross-examination.
(6) The cost of flying Brisbane solicitors and counsel to New South Wales together with accommodation. The applicant's response is that it would be put to the same cost if the proceedings are transferred to Queensland. On the other hand, it was conceded during the course of the hearing that the applicant's solicitors do have a presence in Brisbane and, because of that, the countervailing cost may not be as great. I do not think it is any answer to say that the respondents could have avoided such costs by instructing Sydney resident legal representatives at the outset. The respondents are all located in Queensland, do not carry on any business or have any presence in New South Wales and it is only appropriate that they instruct Brisbane solicitors and counsel.
(7) The fact that the vast majority of any trading is undertaken by the respondents in the Brisbane/south-east Queensland area. As it is pointed out by the applicant, equally its trading and its franchisees are in New South Wales.
(8) The absence of any evidence of prejudice to the applicant if the matter were heard in Brisbane. As the applicant points out the prejudice is self-evident. The applicant will be put to the additional costs of having its current legal representatives travel to Brisbane or alternatively retaining and briefing Brisbane based legal representatives.
(9) The fact that this is only the second appearance before the Court (the other being a directions hearing), the matter is not on any particular judge's docket for trial or, if it is, it is not suggested a particular judge has such a detailed knowledge of the matter that it should not be transferred. As noted earlier, there have been four directions hearings in Sydney, however, having regard to the length of time these proceedings have been on foot and the nature of the hearings to date, while none of this mitigates against a change of venue, I do not understand how it provides any sound reason for a change of venue.
(10) The material filed to date is not so substantive nor is the action so particularly complex that it need remain in New South Wales. In response the applicant submits that it is proceeding on the basis that all affidavit evidence has been filed and only the third respondent will be cross-examined. It is for that reason, the applicant submits, that the trial is likely to conclude within two days. It follows, in its submission, that the cost involved in the legal representatives of the respondents and one witness travelling to Sydney will not be substantial. It further submits that despite the acknowledgement of lack of complexity, the respondents' submissions otherwise appear to be premised on the trial being far more complex and lengthy than it will be. On the other hand, if that is the case, then that premise is sourced in the applicant casting its statement of claim as wide as it has, particularly if, as it's counsel submitted, the applicant is proceeding on the basis that all affidavit evidence upon which it relies has been filed.