JYQGMENT No. S0qya1. CATCHWORDS COURTS - Jurisdiction - Trade Practices Act Pt.V - Conferral of jurisdiction upon Supreme Courts - Effect of Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 - Whether effective to confer on Supreme Courts jurisdiction under s.87 of Trade Practices Act to declare a contract void ~ Considerations of convenience in decision whether to transfer proceeding to Supreme Court. Trade Practices Act 1974 ss.75B, 86, 86A, 87. Jurisdiction of Courts (Miscellaneous Amendments) Act 1987. NSW G.335 of 1987 DAVID WALTER EWINS & ORS v_ BUDERIM IMPORTS PTY LIMITED Wilcox J Sydney 2 September 1987 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.335 of 1987 ewww wv GENERAL DIVISION BETWEEN: DAVID WALTER EWINS First Applicant STARR PRENDERGAST Second Applicant MOORLIFE AUSTRALIA PTY LIMITED Third Applicant AND: BUDERIM IMPORTS PTY LIMITED Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 2 SEPTEMBER 1987 MINUTES OF ORDER THE COURT ORDERS THAT: l. Grant leave to applicants to amend their Statement of Claim by filing an amended Statement of Claim not later than tomorrow. e 2. The proceeding as so amended be transferred to the Supreme Court of New South Wales. 3. The applicants pay the costs of the respondent of the Notice of Motion filed today. 4. The respondent pay the costs of the applicants of the Notice of Motion filed on 26 August 1987. 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 GENERAL DIVISION BETWEEN: AND: CORAM: WILCOX J PLACE: SYDNEY DATE: 2 SEPTEMBER 1987 EXTEMPORE REASONS No. NSW G.335 of 1987 DAVID WALTER EWINS First Applicant STARR PRENDERGAST Second Applicant MOORLIFE AUSTRALIA PTY LIMITED Third Respondent BUDERIM IMPORTS PTY LIMITED Respondent FOR JUDGMENT This is the hearing of a Notice of Motion filed by the respondent and seeking an order that the proceeding instituted against it in this Court, on behalf of the three applicants, be transferred to the Supreme Court of New South Wales Commercial Division to be determined together with proceedings No 28125 of 1987 commenced in that Court. 2 The Supreme Court proceedings were instituted on l May 1987 when a summons was filed in the Commercial Division. In that summons Buderim Imports Pty Limited as plaintiff sought an order that the defendants pay to it the sum of $296,780.97 together with interest thereon. The basis of the claim was a deed between the parties dated 30 August 1985 in relation to which Buderin alleged that the defendants had defaulted. A defence was filed to that summons on behalf of all three defendants in which they said that they had entered into the deed pursuant to certain representations made by a Mr Peter Peterson on behalf of Buderim. The representations were particularised. On 24 July 1987 the present proceeding was commenced when the three Supreme Court defendants filed in this Court an application for relief, the respondent being Buderim. The Statement of Claim reveals that the applicants in this Court rely upon the agreement of 30 August 1985, apparently the same document as referred to in the Supreme Court, and that they allege that they entered into the agreement as the result of misleading and deceptive conduct by the respondent. Particulars of that misleading conduct are given and the representations referred to are the same representations as are relied upon in the defence in the Supreme Court. I am informed that the Supreme Court proceeding# have been before Rogers J, who has made various directions and has fixed a hearing date: 11 September 1987. It is suggested that there may be a problem about the matter proceeding on that day because of the unavailability of a witness. This 1s a matter which will no doubt be considered by his Honour. It is sufficient to say that the Supreme Court has the hearing of the matter under active consideration and it seems likely that the dispute would obtain an earlier hearing in the Supreme Court, having regard to the stage which the proceedings in that Court have already reached, than would be possible in this Court. It seems to me that there is no doubt that the convenient course is to accede to the application made on behalf of Buderim and transfer the proceedings in this Court to the Supreme Court so that all matters in issue between the parties can be resolved, and all appropriate relief can be granted, in the one hearing in the court where the earlier hearing date can be obtained. It is, however, said on behalf of the applicants in this Court that, notwithstanding the commencement of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 yesterday, the Supreme Court lacks jurisdiction to grant all of the relief which is claimed by these applicants. In particular, I am informed that the applicants will press ffor an order declaring void the agreement of 30 August 1985. There is, of course, provision under s.87 of the Trade Practices Act 1974 for the Federal Court to make such an order. The question is whether the amendments have succeeded in giving to the Supreme Court ethe same power. Although it 1s necessary to refer to several sections of the Trade Practices Act, as amended, I think it is clear that the amendments do succeed in conferring upon the Supreme Court all of the powers which have hitherto been vested only in the Federal Court. The starting point is s.86(2) of the Act, which was added by the recent amendments. That sub-section invests the several courts of the State with federal jurisdiction, within the limits of their several jurisdictions, with respect to any matter arising under Div.1l or Div.1A of Pt.V in respect of which a civil proceeding 1s instituted by a person other than the Minister or the Trade Practices Commission. It 1S said on behalf of the applicants in this Court that a claim which 1s based upon s.52 of the Act, as is this claim, is not a matter arising under Div.1 because 1t is necessary to have resort to Div.6 of Pt.V in order to obtain the necessary relief. I do not think that the phrase "matter arising under Division 1" should be so construed. I think the clear intent of the Parliament was to use this phrase to refer compendiously to any cause of action arising as a result of a breach of any provision in Div.1 or Div.1lA. If 1t were necessary to have regard to the section empowering the Court to make orders in enforcement of the cause of action there would never be any matter arising under Div.1 or Div.1A or Pt.V, within the meaning of s.86(2); so that the whole exercise in attempting to confer jurisdiction upon the courts of the States would have failed in its purpose. The second section to which reference should be made is s.86A. This section deals with the transfer of matters and sub-s.(1) provides that where a civil proceeding instituted (whether before or after the commencement of the section) by a person other than the Minister or the Trade Practices Commission 1s pending in the Federal Court and a matter for determination in the proceeding arose under Div.1l of Pt.V -- that is this case -- the Federal Court may, subject to sub-s.(2), upon the application of a party or of its own motion, transfer to a court of a State the matter referred to. Sub-section (2) imposes a limitation on that power in that the Federal Court is not to transfer a matter to another court under sub-s.(1) unless the other court has power to grant the remedies sought before the Federal Court and 1t appears to the Federal Court either that the matter arises out of or 1s related to a proceeding that is pending in the other court or that 1t is otherwise in the interests of justice that the matter be determined by the other court. There is, in the present case, no question about satisfaction of the second condition, but it 1s said on behalf of the applicants in this Court that the Supreme Court does not have power to grant the remedies sought before the Federal Court. In particular it is said that this cannot be a reference to a power granted under the amendments, because otherwise the limitation would be meaningless, but that the first condition must refer to a power arising aliunde. I do not think that this is so. I think that the reference to the other court having power to grant the remedies is intended to take account of the possibility that the proposed transfer might be to an inferior court of a State or Territory whose remedies are limited by the law of the relevant State or Territory. Section 86(3) specifically preserve any such limitation; in the sense that it qualifies s.86(2) so that that sub-section does not confer jurisdiction upon such an inferior court to grant a remedy which it is not able to grant under the law of the relevant State or Territory. I accept the submission that 1t is this limitaion which is referred to in the first of the two matters considered in s.86A(2). Section 75B has been amended recently so as to insert sub-s.(2). This sub-section is a definition provision and relevantly provides that, subject to any indication of the contrary intention, in Pt.VI a reference to "the Court", in relation to a matter, is a reference to any court having jurisdiction in the matter. It follows that, subject to any contrary intention, where one finds in that Part a provision empowering "the Court" to make a particular type of order, that provision extends to a State court to whom the matter has been transferred pursuant to s.86(2). Section 87 speaks, in relation to the conferring of powers, about "the Court". It follows that the effect of the expanded definition in s.75B(2) is that s.87 must be read as including a reference to the Supreme Court, wherever the Supreme Court has been invested with jurisdiciton under s.86(2) and has had transferred to it a particular matter under s.86A. I do not think that there is any question about the jurisdiction of the Supreme Court of New South Wales in the present case to grant to the applicants in this Court any relief to which they might be entitled in the proceedings which they have instituted in this Court. That being so, and having regard to the matters of convenience to which I have already referred, I think that it 1s appropriate to accede to the application made on behalf of Buderim and to order that the proceeding in this Court be transferred to the Supreme Court of New South Wales to be determined together with proceeding No.28125 of 1987. Counsel for the applicants has indicated that his clients would wish to have the opportunity of amending their application so as to seek some additional relief under s.87. I think 1t 1S appropriate that this matter be put in order promptly. Accordingly, I grant leave to the applicants to amend their application in relation to the relief sought by filing an amended Application not later than tomorrow. I order that the proceeding as so amended to transferred to the Supreme Court of New South Wales. I order that the applicants in this Court pay the costs of the respondent in this Court of the Notice of Motion filed today. I order that the respondent in this Court pay the costs of the applicants in this Court of the Notice @f Motion filed on 26 August 1987. I certify the seven (7) preceding pages to be a true copy of the Reasons for Judgment of his Honour Justice Wilcox. Associate : foeane flaticE Date: 12 October 1987 Counsel for the Applicants: Solicitors for the Applicants: Counsel for the Respondent: Solicitors for the Respondent: Date(s) of hearing: Mr G Segal Hopper-Serisiler Ms A C Bennett Shaw McDonald 2 September 1987