NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.68 of 1980 ed GENERAL DIVISTON BETWEEN : P. COLEMAN AND ANOR Applicant AND: INTERNATIONAL FOOLS PTY.LTD. Respondent Judge making order: Gummow J. Date of order: 3 April 1987 Where made: Sydney MINUTE OF ORDER The Court Orders That: (1) The Application and Statement of Claim are struck out for want of jurisdiction. (2) There be no order as to costs of the motion. (3) There be no order as to costs of the proceedings. NOTE: Settlement and entry of orders is dealt with in 36 of the Federal Court Rules. FEDERAL cou AUSTRALIA' OF 5 PRINCIPAL ' REGISTRY - NOT FOR PUBLICATION Il, THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.68 of 1980 ) GENERAL DIVISTON ) BETWEEN : P. COLEMAN AND ANOR Applicant AND: INTERNATIONAL FOOLS PTY.LTD. Respondent GUMMOW J. 3 April 1987 REASONS FOR JUDGMENT HIS HONOUR: The Court today has before it a notice of motion filed by the Respondent on 1 December 1986, in which an order 1s sought that the application and statement of claim in these proceedings be struck out for want of jurisdiction. The proceedings were commenced in 1980, and the pleading in its present form is an amended statement of claim dated 29 August 1980 and filed on 3 September 1980. The matter was before the court on several occasions in 1980, and in October 1980 there was Filed a notice of motion, in similar terms to the current motion, in which an order was sought striking out the pleading for want of jurisdiction. The position was reached in 1980 that on 17 November in that year, counsel then appearing for the Applicants on the one side and for the Respondent on the other made submissions to the Court which produced an order standing the matter over generally with liberty to either party to restore on seven days notice to the other party. Costs were reserved. At that stage there may have been some room for doubt as to the extent of the jurisdiction in this court both in matters arising under Part V of the Trade Practices Act 1974 and in matters in which reliance was placed on the Court's accrued jurisdiction. In the present case the amended statement of claim refers to an agreement reached between the Respondent and the Applicants for the sale of a fibreglass swimming pool of certain measurements. It asserts the implication of terms pursuant to ss. 70 and 71 of the Trade Practices Act and goes on to assert breach of those terms. The amended statement of claim also alleges a breach of contract. It is said in respect of this claim that the goods were not fit for the particular purpose for which they were ordered and were not of merchantable quality, and particulars are given as to the defects in the pool. ww Whatever may have been the uncertainty on any question of jurisdiction in 1980, it became clear following the decisions of Brennan J. ain this court in Arturi v. Supps Motors pty Limited, (1980) 49 FLR 283 (delivered on 19 December 1980) and of Toohey J. in this court in Polgardy v. Australian Guarantee Corporation Limited, (1981) 52 FLR 240, that this Court had no jurisdiction in respect of the claims in the present proceedings which are based on the Trade Practices Act, and this is because the allegations involved are based in Division 2 of Part V rather than in other provisions of the Act. The process of reasoning which leads to this conclusion is set out in the judgments to which I have referred. It was also perhaps unclear in 1980 what was the extent of the accrued jurisdiction of the Court to entertain a claim in, for example, contract when that claim was attached to a claim based in the Court''s statutory jurisdiction. The High Court delivered judgment in Philip Morris Inc. v. Adam P. Brown Male Fashions Pty.Ltd (1981) 148 CLR 457 on 10 February 1981. It is, of course, now settled and has been settled for some years that a contractual claim may be attached in this way if it is appended to and part of the one "matter" to which the Court's jurisdiction is attracted. However, in the present case it is, as I have indicated, clear and has been clear for some years that the Court has no principal or primary jurisdiction under Division 2 Part D of 4. the Trade Practices Act, and therefore in the present case there is ""matter" before the Court to which any claim in contract could be attached. It follows that there is not and never has been jurisdiction in respect of the claims that have been made, and it follows that the application and the statement of claim should be struck out. Mr Coleman, the first applicant, appeared in person and has put to me in his submissions the background to the matter. It is important to understand that nothing said today on the question of jurisdiction decides adversely to him, or indeed favourably to him, issues as to the merits of the case and the defects or otherwise of the particular pool that was supplied. What is being decided here today is that this Court is not the appropriate Court for the entertainment of that complaint. That brings me to the question of costs. As I mentioned, on 17 November 1980 the matter was stood over generally with liberty to either party to restore. It appears that since that time the Applicants have been divorced and that a deed in respect of their financial affairs was approved by the Family Court of Australia under s. 87 of the Family Law Act. The Respondent to the proceedings, the Applicant to the motion, tendered four letters which passed from the solicitors for the Respondent, International Pools Pty Limited, to Messrs Allan D. Farrar & Co. solicitors, the first being on 23 September 1983, 5. the second on 25 July 1984, the third on 8 January 1985 and the last on 20 August 1985. In this period the question of jurisdiction remained unagitated before the Court. It is imperative when a party in the position of that of the applicant in the present motion wishes to agitate an issue going to jurisdiction that it do so forthwith and with maximum possible despatch, otherwise the Court and the parties are left in doubt as to the disposition of the matter, and that unfortunate tendency is illustrated by some of the matters put to me this morning. The position is that nothing substantive was done to bring the matter back to the Court between 17 November 1980 and the filing of the present notice of motion on 4 December 1986. In my view, it would be an appropriate exercise of my discretion as to the award of costs to make no order as to costs. The result is that first, the application and statement of claim are struck out for want of jurisdiction, and secondly, no order is made as to costs of the motion or of the proceedings. I certify that this and the four (4) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Gunmow. Associate: fire Marule . Date: 3 April 1987 First named Applicant in person: Counsel for 2nd Applicant: Solicitor for Respondent: Date of Hearing: Date of Judgment: Mr P. Coleman P.M. Winch Esq. Mr -D. McAlary of Messrs Hunt and Hunt 3 April 1987 3 April 1987