CATCHWORODS FEDERAL JUDICIARY - application to stay Federal Court proceedings pending resolution of Supreme Court proceedings - certificate of readiness for trial executed by parties in Supreme Court - substantial identity of issue - factors to be considered - stay of Federal Court Proceedings granted. Trade Practices Act 1974 3.87 VINPARK INVESTMENTS PTY LTD v. DAINFORD LIMITED QLD G136 OF 1984 SPENDER J. BRISBANE 4 DECEMBER 1984 IN_THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G136 of 1984 GENERAL DIVISION ) BETWEEN : VINPARK INVESTMENTS PTY LTD Applicant AND: DAINFORD LIMITED Respondent ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 4 DECEMBER 1984 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. That proceedings in Application G136 of 1984 be stayed pending resolution of the Supreme Court proceedings. 2. Costs of this morning's proceedings be the respondent Dainford Limited's costs in the cause. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G136 of 1984 GENERAL DIVISTON ) BETWEEN : VINPARK INVESTMENTS PTY LTD Applicant DAINFORD LIMITED Respondent SPENDER J. 4 DECEMBER 1984 EXTEMPORE REASONS FOR JUDGMENT This its a notice of motion brought by the respondent to stay the application filed by Vinpark Investments Pty Limited on 27 November 1984. The application was accompanied by a statement of claim seeking, amongst other things, an order that' the applicant is not bound by an agreement entered into between the applicant and the respondent on or about 26 August 1981, and an order for repayment of $22,100 pursuant to the provisions of 3.87 of the Trade Practices Act 1974 ("the Act") or the agreement, or, alternatively, as money had and received or on other grounds. The application centres on dealings involving the entering into of a contract for the acquisition of a home unit on the Gold Coast between the applicant as purchaser and respondent as vendor. The notice of motion seeking a stay of the proceedings is essentially based on the consideration that the proceedings in the Supreme Court have reached the stage that this court would, in the exercise and control of its own process and as a matter of justice between the parties, stay the application filed on 27 November 1984 until determination of the Supreme Court proceedings. In Stack v. Coast Securities (No. 9) Pty Ltd (1983) 57 ALJR 731, the High Court held that this court has furisdiction to entertain in full applications based, not only onthe Trade Practices provisions in respect of which this court has exclusive Jurisdiction, but also all other aspects of the matter which are involved inthe litigation of the Federal Court claim, and, further indicated that it was appropriate that the court which has the power to dispose of the whole of the matter in dispute ought generally to be the court which disposes of the dispute. The Chief Justice, at page 738, referred to the defect in the judicial system which allows for duplication of proceedings, and the hope that unseemly and fruitless duplication could be resolved. As at today, that has not yet been achieved, but the question simply, and unfortunately not infrequently, has to be decided as to which forum, in the light of the particular circumstances of the actual litigation, is the more appropriate for the continuation of the proceedings. The facts of the matter are these: Dainford Limited commenced its proceedings in the Supreme Court on 8 February 1983. Vinpark Investments Pty Ltd was not merely a passive respondent. On 18 November 1983, there was a counter-claim delivered seeking, amongst other things, damages in respect of what has been refered to as the "level 13 point" - that is to gay, the lack of identity between what was agreed to be conveyed and what was the subject of the conveyance, or, alternatively, that there was amistake as to the subject matter of the contract. Proceedings in the Supreme Court, then, having commenced on 8 February 1983, have continued through all the interlocutory stages. Discovery has been completed, interrogatories delivered and answered, and, most importantly in my view, a Certificate of Readiness and Trial Papers were filed in the Supreme Court on 19 July 1984. The first communication of the present applicant's intention to proceed in the Federal Court was by telex, dated 22 November 1984, the first paragraph of which reads, in part:- "As you are aware we act on behalf of Vinpark Investments Pty Ltd. We have received instructions to commence proceedings in the Federal Court claiming damages against your client, Dainford Limited, pursuant to the provisions of Section 52 of the Trade Practices Act. These proceedings will be commenced in the immediate future." After the certificate of readiness was filed on 19 July 1984, the matter has been awaiting call over, and the affidavit of Richard Bruce Holt filed on behalf of the respondent in Paragraph 6, deposes to the fact that he has been informed that the matter will appear on the call over to be called over on 14 December 1984 for the sittings commencing 4 February 1985. It is unlikely that the matter will be set down for trial at those sittings, but, in any event, the matter is awaiting trial, and, on any view of the matter, the Supreme Court matter will certainly be tried before the middle of 1985. The proceedings in the Federal Court were commenced only a few days ago. It ig clear that if the matters are not stayed here, there will be cross-claims by Dainford Limited, and it is by no means clear that further interrogation, and discovery going beyond that which has occurred in the Supreme Court will not be required in this court as the issues in the two courts are not identical. In my view, when one has regard to the extent to which the proceedings have gone in the Supreme Court, to the costs that all parties have expended in the resolution of the issues in that court, it is clear there would be an expensive and, in my view, lamentable duplication and waste of costs if proceedings were to be litigated concurrently here. Most importantly, in my view, because the present applicants did not commence any proceedings in the Federal Court, nor seek to pursue their undoubted rights to bring claims here, from the commencement of the proceedings in the Supreme Court until after the Certificate of Readiness was signed in July this year, and did not convey any intimation of their Federal Court intentions to the respondent until 22 November 1984, it seems to me that, notwithstanding the fact that this court alone has the capacity to deal with the entirety of the matters in dispute between the parties, as a matter of substantial justice between the parties, this court ought not to be a party to the waste and the tactical manoeuvring that seems to me to be inherent in these proceedings. It is by no means certain, in any event, that if the matter were to be allowed to proceed here, with directions given in accordance with the timetable for which the rules allow, and bearing in mind the pressure of matters awaiting trial here, that a trial in the Federal Court could, in fact, be secured any more speedily than one in the Supreme Court. It is, in my view, conducive to the interests of substantial justice between the parties that the proceedings in the Supreme Court be resolved as quickly as possible. There will be, because of the substantial identity of the factual issues, a considerable resolution of the matters to be tried by this court by reason of estoppel. I acknowledge that the matters will not be completely resolved, because the issues are not identical. The present applicants are entitled to pursue their Federal Court rights, but not at the cost of the interests of justice. In my view, the proceedings here, still in their infancy, ought to be stayed pending the resolution of the Supreme Court proceedings. So far as the costs of this morning are concerned, I will order this morning's costs to be the respondent's costs in the cause. One has to decide these matters on the facts of each particular case, and the facts here I regard as significantly distinguishable from the factual situation that applied in Stack v. Coast Securities, supra, where the real question was essentially the existence of the accrued jurisdiction. Here, over a long period, there has been detailed litigation between the parties, both as claimants and cross-claimants in the Supreme Court and, as long ago as July, the matters were ready for resolution there. It has been offered that part of the reason for coming here is the belief that the matter might be resolved more quickly in this court despite the fact that proceedings here started some 20 months after those in the Supreme Court. But, as I say, it is by no means clear that the matter would, had it been allowed to proceed here, have reached finalisation prior to the Supreme Court proceedings. lcertify tha. ths * - pages creat, -°- Ms, gudgment horn Mr. Justice Spo. c. - | hfe Seren 'a ste, red iar ataty a PING Dated gar re, Thy