COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CWDS
  Practice and Procedure - cross-vesting - application to transfer matter to
Supreme Court of Victoria - action for breaches of Trade Practices Act 1974
and for breach of contract - proceeding instituted by respondent and other
parties in Supreme Court of Victoria to recover damages from applicants and
other parties for breaches of same contract - whether in the interests of
justice that the matter be determined by the Supreme Court of Victoria.
  Jurisdiction of Courts (Cross-vesting Act) 1987, s.5(4)
  Jurisdiction of Courts (Miscellaneous Provisions) Act 1987, The Schedule
Trade Practices Act 1974, ss. 52, 82 and 87

HRNG
SYDNEY
#DATE 17:3:1992
  Counsel and Solicitors       :  Mr D.J. Hammerschlag
for the Applicants                instructed by Cowley Hearne
  Counsel and Solicitors       :  Mr N. Mukhtar
for the Respondent                instructed by Corrs Chambers Westgarth

ORDER
  1.  The first paragraph of the respondent's Notice of Motion of 24 January
1992 be dismissed.
  2.  The matter stand over to 26 March 1992 at 9.30 a.m. for directions.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  By its notice of motion filed on 24 January last, the respondent in this
matter seeks to have this proceeding transferred to the Supreme Court of
Victoria, pursuant to subsec.5(4) of the Jurisdiction of Courts
(Cross-vesting) Act 1987.  Alternatively, it seeks an order, in the event that
that application is not granted, under s.48 of the Federal Court of Australia
Act 1976 and rule 10 of this Court's rules that this proceeding be transferred
to and conducted in the Victorian Registry of this Court.
2.  The application brought by the applicants was filed on 30 September last.
However, it was not served until 20 December and the first directions hearing
took place on 7 February this year.  The relief sought in the application is,
firstly, a declaration that the respondent has, in trade or commerce, engaged
in conduct that is misleading or deceptive or is likely to mislead or deceive,
in contravention of s.52 of the Trade Practices Act 1974.  Also sought is a
declaration that the condition precedent contained in clause 2.1(b) of an
agreement, described as an establishment agreement, made between the first
applicant and the respondent on 6 August 1990, has not been fulfilled in
relation to certain companies referred to in the twelfth schedule to that
agreement.  A declaration is also claimed that, in the events that have
happened, the first applicant is not obliged to complete the acquisition of
certain companies described in the agreement as the Victorian Hotel Owning
Companies.   In para. 4 of the application relief is claimed under s.87 of the
Trade Practices Act varying the terms of an agreement known as, Heads of
Agreement, between the first applicant, the second applicant and the
respondent, dated 17 June 1991.  Finally, there are claims for damages, both
under s.82 of the Trade Practices Act and at common law for breach of
contract.
3.  The statement of claim is to a degree complex.  I need to refer to the
essential allegations which it makes.  In para. 4 it is alleged that on or
about 6 August 1990 the first applicant and the respondent entered into the
Establishment Agreement pursuant to which the first applicant and the
respondent agreed to restructure a selected portfolio of Australian hotel
owning companies in which the respondent and the first applicant were each to
own directly or indirectly 50 per cent of the equity.  Paragraph 5 alleges
that on the same date the first applicant and the respondent and various other
companies related to the first applicant and the respondent respectively,
entered into further written agreements for the purpose of bringing about the
transaction envisaged in the Establishment Agreement.  There are then
particularised a number of agreements, to the detail of which I need not
refer.  Paragraph 6 pleads that the transaction contemplated in the agreements
referred to in paras. 4 and 5 contemplated the acquisition by the first
applicant and companies associated with it of interests in hotels owned and
operated by the respondent and companies associated with it in New South
Wales, Queensland and Victoria.  The paragraph goes on to say that the
agreements, insofar as they relate to hotels in Queensland and New South
Wales, have been performed and executed.
4.  Paragraph 7 of the statement of claim alleges that pursuant to a clause of
the establishment agreement (clause S(vii)), a nominated subsidiary of the
first applicant was to acquire 50 per cent of the existing shares in certain
companies listed in the twelfth schedule to the agreement and also in
companies, AVS East Doncaster Hotels Pty Limited and AVS Mill Park Hotels Pty
Limited, which are collectively referred to as the Victorian Hotel Owning
Companies or the Companies. Paragraph 8 refers to clause 2.1(b) of the
Establishment Agreement and alleges that the obligations of the parties under
that clause were subject to the first applicant and the respondent procuring
funding for each of the Victorian Hotel Owning Companies so as to affect an
initial gearing ratio of approximately 50 per cent external debt to 50 per
cent fixed assets, the debt component to be procured on a non-recourse basis.
5.  Paragraph 9 of the statement of claim refers to clause 10 of the
Establishment Agreement in which are contained a number of warranties and
pleads some of these, namely, those dealing with books of account, ledgers,
financial and other records of the companies, material change in the nature of
the business assets or liabilities of the company since 30 June 1990 and that
the only assets and liabilities contingent or otherwise or howsoever arising
of the company as at the completion date, which was apparently to be about
September 1991, should be land, buildings and plant, furniture and equipment,
licence and cash and long term debt equal to 50 per cent of the value of the
assets.  Paragraph 10 is in the following terms:
    "Prior to entering into the agreements referred to in
    paragraphs 4 and 5 above, the Respondent, with the intention
    of inducing the First Applicant to enter into the
    agreements, provided the Applicant with written valuations
    of the assets of the Victorian Hotel Owning Companies."
6.  Particulars of those valuations are given and I need not refer to them.
Paragraph 12 says that during October 1990 the respondent obtained valuations,
described as "the McGee Valuations", which had been commissioned by its
associate, Carlton Finance Limited, showing that the value of the hotels
referred to was - and then there are stated a number of hotels and the value
of each of them.
7.  Paragraph 13 of the statement of claim pleads that the McGee valuations
were procured by the respondent for the purposes of inducing the bankers to
the Victorian Hotel Owning Companies to provided finance to such companies as
is envisaged in clause 2.1(b) of the establishment agreement.  Paragraph 14
says:-
    "The valuations so procured were, to the knowledge of the
    Respondent, inaccurate, in that they materially overstated
    the value of the hotels concerned.
                             PARTICULARS
    The valuations were prepared by McGees on the basis of
    information provided by the Respondent and contained
    information concerning operating expenses which to the
    knowledge of the Respondent was incomplete, understated and
    wrong."
8.  Paragraph 15 alleges that, as at 16 January 1991 and at all material times
thereafter the long term debts have, in breach of clause 10(3)(a) of the
establishment agreement, been in excess of 50 per cent of the value of the
assets.  The particulars say that the value of the assets is not more than
$25.61 million and the long term debts are not less than $45.06 million so
that the warranty has been breached to the extent of $64.51 million.
9.  Paragraph 16 of the statement of claim makes reference to a supplemental
agreement entered into on 24 December 1990. Paragraph 17 refers to clause 3
thereof in which it is said the respondent took upon itself the primary
responsibility for ensuring that the requirements of clause 2.1(b) of the
Establishment Agreement were met.  Paragraph 18 pleads that during or about
January 1991 the respondent procured a loan finance facility from the State
Bank of New South Wales and other banks forming a syndicate on the basis of
the McGee valuations and informed the first applicant of the amount thereof.
Paragraph 19 is as follows:-
    "In so informing the First Applicant of the loan finance
    facility so obtained the Respondent represented to the First
    Applicant that:
    (a) the value of the Victorian Hotel Owning
        Companies was at least twice the amount of
        the Facility obtained from the State Bank of
        New South Wales.
    (b) The Victorian Hotel Owning Companies were
        able to service the said loan finance facility."
10.  Paragraph 20 of the statement of claim alleges that the representation
referred to in para. 19 was made in trade and commerce and was misleading and
deceptive or likely to mislead and deceive in contravention of s. 52 of the
Trade Practices Act in that the value of the Victorian hotel owning companies
was materially less than that represented and the Victorian Hotel Owning
Companies were in fact incapable of servicing the loan finance facility.
11.  Paragraphs 21 and 22 plead a case based on s.52 on a different basis.  It
is alleged in para. 21 that in all the circumstances the respondent was under
a duty to disclose to the first applicant the existence of and contents of the
McGee valuations and that the finance which had been obtained for the
Victorian hotel owning companies at the instance of the respondent had been
obtained on the basis of the said valuations which were inaccurate.  Paragraph
22 is as follows:-
    "The failure by the Respondent to so disclose to the First
    Applicant constituted conduct, in trade and commerce, which
    was misleading or deceptive or likely to mislead or deceive
    in contravention of Section 52 of the Act."
12.  A further breach of s.52 is alleged in para. 23 which says:-
    "The conduct of the Respondent in providing wrong
    information to the State Bank of New South Wales and the
    other syndicate members constituted conduct, in trade and
    commerce, which was misleading or deceptive or likely to
    mislead or deceive in contravention of Section 52 of the
    Act."
13.  Then in para. 24 reference is made to the Heads of Agreement.  It is
alleged to have been entered into on 17 June 1991.  Paragraph 25 says:-
    "Had the First Applicant been aware of the said matters in
    respect of which the Respondent was under a duty to
    disclose, it would not have entered into the Supplemental
    Agreement dated 24 December 1990 and Heads of Agreement
    dated 17 June 1991."
14.  Paragraph 26 of the statement of claim pleads that each valuation, which
was a record of the company concerned, contained material inaccuracies and
discrepancies that did not give a true and fair view of the said companies and
of their assets and liabilities and constituted a breach of the warranties.
Paragraph 27 alleges that in all the circumstances finance as envisaged in
clause 2.1(b) of the Establishment Agreement had not been procured.
15.  A defence has been filed.  It contains a series of admissions and denials
but is otherwise not relevant to the present problem.
16.  I should make some reference to the terms of the Establishment Agreement,
a copy of which, or at least a copy of part of which, is in evidence.  It
opens with a number of recitals.  Recital A says that the respondent and the
first applicant have agreed to restructure a selected portfolio of Australian
hotel owning companies in which they each are to own, directly or indirectly,
50 per cent of the equity.  Recital B says that a company to be known as the
Australian Pub Company Pty Limited, is a company incorporated in the
Australian Capital Territory.  Its capital is referred to and it is said that
that company is to be appointed as manager and agent of a joint venture to be
established between a subsidiary of the respondent and a subsidiary of the
first applicant with respect to the hotels referred to in recital A.  I do not
find it necessary to refer to the balance of the recitals which are quite
numerous.
17.  The operative part of the agreement opens with a clause dealing with
interpretation and then in clause 2 one comes to conditions precedent.  There
is to be found clause 2.1(b) which is referred to in the statement of claim.
In essence it provides that all obligations of the parties in respect of the
matters set out in clause 3 of the agreement are subject to:-
    "(b) Subject to Clause 17, the first applicant and
    the respondent procuring funding for each of the
    Hotel Owning Companies so as to effect an initial
    gearing ratio of approximately 50 percent external
    debt to 50 per cent fixed assets, the debt component
    to be procured on an interest only, non-recourse basis,"
18.  I should also refer to clause 2.3 which is again a condition precedent.
It provided that the first applicant and the respondent should take all such
practical steps as might reasonably be within their power to enable the
conditions precedent referred to in Clause 2.1(b) and (d) to be fulfilled as
soon as possible.
19.  Clause 3 of the agreement refers to acquisitions.  There one sees the
detail of the various acquisitions which are to be made.  I do not find it
necessary to refer to the detail of clause 3.  Clause 4 deals with completion
and it is unnecessary to refer to the detail of that clause. Clause 10
contains the warranties to which I have already referred.  Clause 14 provides
as follows:-
    "Save as herein provided and as contemplated in any of the
    agreements referred to in this Agreement, this Agreement
    constitutes the entire agreement of the parties (and in to
    which all prior negotiations commitments representations and
    undertakings with respect to the subject matter hereof are
    merged) and there are no other oral undertakings or
    agreements between the parties hereto relating to the
    subject hereof and this Agreement is not based on any
    representations as to profit or worth nor has representation
    been made (whether by this Agreement or otherwise) to induce
    any party to accept and execute this Agreement, or subscribe
    for or acquire shares, to enter into a lease, to enter into
    the Shareholders Agreement and/or to enter into the
    Operating Agreement."
20.  This clause was not referred to in argument, probably for the reasons
that the misrepresentions upon which the applicant rely were made after the
Establishment Agreement had been signed.
21.  Finally, I should refer to clause 20.2 which provides:-
    "This Agreement and the rights and obligations of the
    parties shall be construed in accordance with the laws of
    Victoria and the parties irrevocably submit to the
    jurisdiction of the Courts of that State."
22.  The Supplemental Agreement was, as I have indicated, dated 24 December
1990.  It was made between the respondent and the second applicant which was
not a party to the Establishment Agreement.  The second applicant is a New
Zealand company.  I do not find it necessary at this stage otherwise to refer
to the Supplemental Agreement.  There is then the document headed Heads of
Agreement and I do not need to refer further to it.  It is to be noted that
there is no equivalent of clause 20.2 in either the Supplemental Agreement or
the Heads of Agreement.
23.  On 20 December 1991, the same day as the application and statement of
claim in this matter were served on the respondent, the respondent commenced
proceedings in the Supreme Court of Victoria.  The statement of claim filed in
that matter is in evidence.  The plaintiffs comprise six companies including
the respondent.  The defendants comprise four companies including the first
and second applicants.  They also include Australian Pub Company (Vic) Limited
which is named as the fourth defendant.  The Victorian action is for breach of
contract.  In para. 11 it is pleaded that in breach of the establishment
agreement the first applicant failed to procure by the due date the purchase
of shares referred to in para. 9(a) of the statement of claim, that is the
Victorian statement of claim, or of the stock in trade referred to in para.
9(b) thereof and the loan moneys referred to in para. 9(c).
24.  Paragraph 12 of the Victorian statement of claim pleads that, by reason
of the breach by the first applicant of the Establishment Agreement referred
to in para. 11, the transferors of the shares, namely the second to sixth
plaintiffs, were not paid the moneys referred to in para. 10 of the statement
of claim.   Paragraph 13 pleads that in order to provide the second to sixth
plaintiffs with the moneys referred to in para. 10(a) of the statement of
claim on or about 16 January 1991 the respondent made short term interest free
loans to each of them amounting to $15.148 million.  Paragraph 14 alleges that
by reason of the matters so alleged the respondent has suffered loss and
damage being loss of interest on the short term loans to the second to sixth
plaintiffs. Paragraph 15 of the Victorian statement of claim is as follows:-
    "Further, by reason of Cascade's breach of the Establishment
    Agreement as alleged in paragraph 11(b) hereof, in lieu of
    Cascade procuring the said loan pursuant to the
    Establishment Agreement as alleged in paragraph 9(b) hereof,
    on or about 16 January 1991, CUB made interest free loans to
    the AVS companies amounting to $8,666,383.00 million to
    enable them to discharge their then existing loans to their
    related companies."
25.  Paragraph 16 claims damages in the form of loss of interest on those
loans.
26.  Paragraphs 20 to 23 plead matters which lead to an allegation of breach
of contract by a company Lamicroft Pty Limited which is another of the
companies named as defendant and the Pub Company.
27.  As I have said, the causes of action which are relied upon in the
Victorian statement of claim are all causes of action based on breaches of
various provisions of the contractual documents.
28.  Sub-section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act
provides as follows:-
    "(4)  Where:
    (a)  a proceeding (in this subsection referred
         to as the 'relevant proceeding') is pending
         in the Federal Court or the Family Court (in
         this subsection referred to as the 'first
         court'); and
    (b)  it appears to the first court that:
              (i)   the relevant proceeding arises out
                    of, or is related to, another
                    proceeding pending in the Supreme
                    Court of a State or Territory and
                    it is more appropriate that the
                    relevant proceeding be determined
                    by that Supreme Court;
              (ii)  having regard to:
                    (A)  whether, in the opinion of the
                         first court, apart from this
                         Act and any law of a State
                         relating to cross-vesting of
                         jurisdiction, the relevant
                         proceeding or a substantial part
                         of the relevant proceeding would
                         have been incapable of being
                         instituted in the first court and
                         capable of being instituted in the
                         Supreme Court of a State or
                         Territory;
                    (B)  the extent to which, in the opinion
                         of the first court, the matters for
                         determination in the relevant
                         proceeding are matters arising
                         under or involving questions as to
                         the application, interpretation or
                         validity of a law of the State or
                         Territory referred to in
                         sub-subparagraph (A) and not within the
                         jurisdiction of the first court
                         apart from this Act and any law of
                         a State relating to cross-vesting
                         of jurisdiction; and
                    (C)  the interests of justice;
                    it is more appropriate that the relevant
                    proceeding be determined by that Supreme
                    Court; or
             (iii)  it is otherwise in the interests of
                    justice that the relevant proceeding be
                    determined by the Supreme Court of a
                    State or Territory;
    the first court shall transfer the relevant proceeding to
    that Supreme Court."
29.  I have some reservation whether this case falls within the first limb of
para. (b) of subsec. 5(4).  No argument was addressed in relation to that
matter.  My reservation arises because of doubts I have whether the matter is
within para. (B) of subpara. 5(4)(b)(ii).  Be that as it may, it seems to me
that the primary matter which concerns me is whether or not it is in the
interests of justice that this proceeding be transferred to the Supreme Court
of Victoria.  Whether the matter is under the first or second limb or both,
the interests of justice are the prime consideration.  It is that matter which
formed the subject of the submissions which were made to me by the parties
during the argument and it is that matter which I have concentrated upon in my
consideration of the matter.  I should emphasise that in my view, in the way
that this section should be applied, no party carries any onus and there is no
presumption in favour of or against any party.
30.  There are some matters that I should refer to first of all which I think
are trite.  These are:-
    (a) the applicants in the proceeding in this court have invoked
        federal jurisdiction for the purpose of prosecuting claims
        which arise under federal law.  Their claim is substantially
        based on alleged breaches of s.52 of the Trade Practices
        Act.  There are other causes of action for breach of
        contract but it seems to me that the principal relief which
        they claim is based on their allegations that s.52 has been
        breached in the ways that their statement of claim sets out;
    (b) the relief sought is provided for in a federal statute; I
        refer to ss. 82 and 87 of the Trade Practices Act.  Pursuant
        to the latter section the applicants seek relief which, if
        granted, would have the effect of materially altering the
        rights and obligations of the parties under the agreements;
    (c) this Court has exercised jurisdiction under Division 1 of
        Part V of the Trade Practices Act since it was established.
        Notwithstanding that jurisdiction under Division 1 was
        conferred on State courts by the Jurisdiction of Courts
        (Miscellaneous Provisions Act 1987 (see section 86), this
        Court has continued to be the court in which large numbers
        of Division 1 cases have been instituted.  In the 15 years
        or so in which the Court has exercised that jurisdiction it
        has developed a substantial body of doctrine and principles
        which give guidance as to how the Division, particularly
        s.52, is to be interpreted and applied.  These principles
        have brought about a substantial degree of certainty and
        predictability concerning the way in which the division is
        administered;
    (d) the Court is a federal court.  It has registries in each
        capital city.  It is able to hear cases in any part of
        Australia.  If it is appropriate, it can sit to take part of
        the evidence in one place and other parts of the evidence in
        other places.  Its procedures provide for early and
        extensive directions hearings designed to meet the needs of
        each case.  It requires continuous supervision of cases and
        as necessary directions hearings are heard by telephone link
        or in appropriate cases by video link.
31.  The matters upon which the respondent relies in support of its
application to transfer may I think be summarised as follows:-
    (1)   the terms of the Cross-vesting Act itself;
    (2)   the fact that the Victorian proceeding has been pending for
    as long, in effect, as the proceeding in this Court.  Both
    the Victorian writ and the application in this Court were
    served on the same day.  Neither proceeding is very far
    advanced;
    (3)   the provisions of clause 20(2) of the Establishment
    Agreement to which I have referred and to which I shall
    again make reference in a moment;
    (4)   the proceedings in this Court should be seen as a defensive
    response to the proceedings brought by the respondent in the
    Victorian Supreme Court;
    (5)   the two proceedings are inextricably intermingled;
    (6)   the most material and closest connection which the
    proceeding has is to Victoria.  In this respect it was said,
    inter alia, that the case involved the valuation of shares
    in companies incorporated in Victoria and of assets of those
    companies, hotels, situated in Victoria.  The companies were
    Victorian companies, the establishment agreement had been
    executed in Victoria.  There were other matters mentioned
    but I need not go to the detail of these;
    (7)   the evidence in the case was more available in Melbourne
    then it was in Sydney.
32.  I think I should put out of the way the considerations relied upon in
paragraphs 6 and 7.  These relate entirely to the question of the appropriate
place where the case should be heard.  If that place is Melbourne, the case
can be tried as conveniently by this Court as it can by the Supreme Court.
33.  I do not agree that the facts of the two proceedings are inextricably
intermingled.  The respondent's action is for breach of contract.  The
applicant's action is substantially based upon the applicants having been led
to act in a particular way by alleged misleading or deceptive conduct engaged
in by the respondent.  To the extent that they rely on breach of contract, the
contract is the same as that upon which the respondent, along with others,
sues.  The transactions may be to a degree complex, but the factual matrix of
the case is not unusual.  Undoubtedly there is a commonality about the facts
of the two cases, but this is not a matter which I think can have great weight
in the circumstances of the case.
34.  I do not regard the applicants' case as defensive only.  It is a common
enough proceeding.  The applicants seeks damages as a consequence of the
respondent's alleged misleading and deceptive conduct.  They also seek the
relief under s.87 of the Trade Practices Act to which I have referred.  If
they are successful, it will be the respondent's position which will
materially alter.  I think the applicants' proceedings must be looked at as
they are and for their own sake.  The applicants seek relief; the respondent
as its defence shows, denies that the applicants are entitled to it. That is
the contest which has to be resolved.  Once it is resolved, it seems to me not
unlikely that there will be a resolution of all matters in dispute between the
parties.  That may not be the case, but I think it is the likelihood.
35.  I have given some thought to the provisions of clause 20(2) of the
Establishment Agreement.  The important point to emphasise is that the
agreement which it reflects provides, firstly, that the rights and obligations
of the parties shall be construed in accordance with the laws of Victoria.
That is its first limb.  The applicants have invoked federal law.  It may be
that the clause should be construed so as to include federal law as well as
State law.  If that be correct, that part of the clause does not change
anything so far as this case is concerned. If, on the other hand, the
reference to the laws of Victoria is a reference to the laws of the State of
Victoria, which I think is the better view, the provision is irrelevant
because it is federal law which is involved.  The clause can have nothing to
say about that.
36.  Superficially the second part of the clause may be thought to have more
significance.  It provides, "... the parties irrevocably submit to the
jurisdiction of the Courts of that State"  i.e. Victoria.  But what is it that
is submitted to those courts?  The subject matter must be in the opening words
of the clause, namely, "This Agreement and the rights and obligations of the
parties".  The latter words mean, in my opinion, the rights and obligations of
the parties arising under the agreement.  The rights which the applicants
claim they have in this case do not for the main part arise under the
agreement.  They are said to arise because of conduct engaged in by the
respondent prior to the Supplemental Agreement and the Heads of Agreement
being entered into; they are said to have been induced by it.  In my opinion
the clause can have no relevance to a situation such as this.
37.  That however leaves the causes of action for breach of contract. They are
in my opinion within the clause.  The existence of those causes of action
therefore needs to be taken into account.  Unquestionably this proceeding in
its entirety is a proceeding which could have been instituted in the Supreme
Court of Victoria.  It would have been within the jurisdiction of that court
to entertain it; see section 86 of the Trade Practices Act.  That is, in my
opinion, an important consideration but it cannot be conclusive of what I
should do.  It was not submitted by counsel that it was.  The provision
nevertheless was relied upon by him as a matter which should weigh with me
heavily in the overall resolution of what order I should make in this present
application. That, I agree, is particularly so when one takes into account the
fact that the establishment agreement and the other agreements are commercial
agreements made between substantial commercial organisations.
38.  On the other hand, it needs to be borne in mind, as I was reminded by
counsel for the applicants, that the Supplementary Agreement to which the
second applicant is a party contains no comparable provision.  Despite the
terms of the Supplementary Agreement it was not, as I have said, a party to
the Establishment Agreement.
39.  In the end, as is so often the case in matters of this kind, one has to
engage in a balancing exercise.  I think the matters relied upon by the
respondent in paras. (1) and (2) above are important and need also to be borne
in mind when one is considering what should be done.  On the other hand, the
matters that I specified at the beginning of these reasons in the lettered
paras. (a) to (d) are, in my view, of essential importance.  I think, having
reflected on the matter, that they outweigh the matters upon which I think the
respondent may properly rely.  Having given the matter due consideration, I
have reached the conclusion that, in all the circumstances, it is not in the
interests of justice to transfer this matter to the Supreme Court of Victoria
and I decline to make that order.
40.  I should make some reference to s.86A of the Trade Practices Act which
would also have enabled this Court to transfer this proceeding to a Supreme
Court.  That was not the subject of argument and I have not given it any
consideration.
41.  The alternative limb of the application before me was that the case
should be transferred to the Victorian Registry of this Court.  As I indicated
during argument, I am not prepared to deal with that part of the application
at this stage.  It will be stood over for the time being.  It will be more
appropriate to make a decision about that aspect of it when the matter is
closer to readiness for hearing and one will have a much better idea of the
convenient place or places at which the matter should be tried.
42.  In the result, para. 1 of the notice of motion of 24 January 1992 is
dismissed.  The balance of the application is stood over to the next
directions hearing which I should fix. (Discussion ensued). The matter is
stood over for directions to 26 March 1992, at 9.30 a.m. before me.