David Strike v Dive Queensland Inc & Ors [1997] FCA 1429 (17 December 1997)

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."

The evidence before the Court shows that Dive Queensland Incorporated had secured funding from the Queensland Events Corporation with respect to an event entitled "The Great Barrier Reef Dive Festival". In late May 1995, the second respondent, Wayne Inglis, telephoned from Queensland to the applicant in Sydney and offered him the position of Media Promotions & Public Relations Officer for the conduct of the Great Barrier Reef Dive Festival. In that conversation, Mr Inglis said that funding for the Festival had been guaranteed up to and including the 1997 Festival by the Queensland Events Corporation and the applicant's contract payments would be guaranteed for the Festivals for the years 1995, 1996 and 1997.

The applicant went to Queensland and the matter was there discussed. An agreement was executed by the applicant and on behalf of Dive Queensland Inc. The agreement provided, inter alia:

"1.1 APPOINTMENT AND TERM

DIVE Queensland will appoint David Strike [hereafter called `Strike'] to provide certain Public Affairs services to the festival for an initial period of three Festivals, commencing June 8th, 1995 until the final day of the 1997 Festival. This still to include however, any outstanding requirement in winding up the 1997 event.

...

4.2 TERMINATION

(a) This agreement may be terminated by mutual consent at any time during the term of the agreement.

...

(c) In the event Dive Queensland consider the continuation of the Festival to be financially unviable, this agreement may be terminated at the same time as the cancellation of the Festival."

It is alleged that, in negotiations leading to the execution of that agreement, representations were again made to the applicant that Dive Queensland had obtained funding for the Festivals for the years 1995, 1996 and 1997.

The 1995 Festival was held and the applicant acted as the Media & Public Relations Officer for Dive Queensland in relation to the Festival. The applicant alleges that, in the middle of October, there was a meeting in Sydney at which the agreement was orally confirmed.

On 23 October 1995, Dive Queensland sent a letter to the applicant repudiating the arrangement. The letter included the following paragraphs:

"The '96 Festival has not been confirmed at this stage, although we do have major sponsorship, the budget and financial viability still has to be set and approved, in this regard Dive Qld. has decided to set up a separate Festival Management Committee rather than the board of Dive Qld. being directly involved as it was for '95 we believe this would be of greater benefit to all parties involved.

David the enclosed cheque is in payment up to the first week of November and will be the final payment under the terms of the agreement between Dive Qld and yourself. The continuation of your services is to be negotiated and agreed to by the Festival Management Committee which is meeting on the 27/10/95 this date was set to allow such negotiations to be completed so as not to interrupt the continuation of your engagement."

That letter does not appear to have been a notice of termination in accordance with Clause 4.2(c) of the agreement.

The applicant has brought these proceedings seeking damages in terms of breach of s 52 of the Trade Practices Act although breach of contract and breach of collateral warranty arising out of the oral representations are also mentioned.

In my opinion, it is not in the interests of justice that this matter be continued in this Court. The costs of litigation in this Court are far too high to justify permitting a matter to remain here where the costs could become a greater problem for the respondents than the amount claimed. It is the general practice of this Court to remit to a District Court matters which are within the jurisdiction of such a court. In the ordinary case, justice is better served if the lesser claims are brought in the courts which have been established to deal with them. I am satisfied that this a matter which ought to have been commenced in the District Court of Queensland and it is to that Court to which the present proceedings should be remitted. Not only did the relevant events take place principally in Queensland, which was the location of the employment, but all the persons who may be called to give evidence, save the applicants, are residents of Queensland. Some of those witnesses would appear to be residents in Cairns. The balance of convenience favours sending this matter to Queensland.

I should add that, as the applicant obtained that which was represented, namely, a contract for three years, the applicant's principal claim appears to be for breach of contract. I assume that the statement of claim emphasises s 52 of the Trade Practices Act only to dress up the case as one appropriate for this Court.

The District Court of Queensland has jurisdiction to deal with all those matters which occurred in Queensland. The terms of the agreement were explained and negotiated in Queensland. They were agreed in Queensland and they were set down in writing in Queensland. The telephone conversation in May 1995 would appear to add little to the claim for what was there said was repeated in the discussions which took place in Queensland and is to be implied from the terms of the written agreement. However, I think that the District Court of Queensland would have jurisdiction in relation to it in any event. A misleading statement in a telephone conversation will found an action in the place where the recipient of the statement heard it. See Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd [No 2] (1993) ATPR 41-272; Sydbank Soenderjylland AS v Bannerton Holdings Pty Ltd (1996) ATPR 41-525 at 42,754. But to say that does not, I think, exclude the jurisdiction of the District Court of Queensland to deal with representations which are made by a person who is physically situated in Queensland at the time when the representation is made. The only matter which occurred entirely outside Queensland was apparently a meeting in Sydney in the middle of October 1995. It is not alleged, however, that there was any matter said at that meeting which gave rise to a relevant cause of action. The meeting appears to have been no more than part of the history of events.

In these circumstances, I am satisfied that the matter should be transferred to the District Court of Queensland which is the appropriate court to deal with the matters in dispute. It has jurisdiction to make the orders which the applicant seeks.

I shall order that the respondent's costs of the hearings on 14 and 28 November will be costs in the cause.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 17 December 1997

Counsel for the Applicant:	K J Ryan
Solicitor for the Applicant:	Lynden E Hopper & Co
Solicitor for the 1st Respondent:	Kaufmann Peters
Solicitor for the 2nd & 3rd Respondents:	Phillips Fox
Date of Hearing:	28 November 1997
Date of Judgment:	17 December 1997