IN THE FEDERAL COURT ) OF AUSTRALIA WESTERN AUSTRALIAN DISTRICT REGISTRY GENERAL DIVISION we ww BETWEEN: the motion. Note: Settlement and entry of orders is dealt with Order 36 of the Fede LIMITED DISTRIBUTION NO. WAG 24 of 1988 ROGER BOYD SPENCER Applicant and HUGALL & HOILE LIMITED ral Court Rules. Respondent JUDGE MAKING ORDER: FRENCH J. DATO Of ORDER: 21 MARCH 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: A. As to the respondent's motion dated 10 March 1988. 1. The motion is dismissed. 2. There will be no order as to costs. B. As to the applicant's motion filed 1 March 1988. l. The motion is dismissed. 2. The applicant is to pay half the respondent's costs of in HS IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALTAN OISTRICT REGISTRY GRNEPAL DIVISION "MO. WAG 24 of 1938 BETWRFRENs: ROGER BOYD SPENCER Applicant and HUGALI & HOILE LIMITED Respondent CORAM: FRENCH J. 21 March 1988 REASONS FOR DECISION ON MOTIONS RELATING TO CONCURRENT PROCEEDINGS IN THE DISTRICT COURT Roger Boyd Spencer is a farmer at Serpentine in Western Australia. He says that on 23 May 1985 he leased from Esanda Limited a Steriline Lateral Move Irrigator. He was induced, he says, to enter the lease by representations made on behalf of the vendor of the irrigator, Hugall & Hoile Ltd. The alleged representations related to delivery and commissioning dates. Further, Spencer complains that the irrigator, after delivery, broke down on various occasions between September 1985 and March 1986 and that attempts by Hugall & Hoile to repair it were ineffective and carelessly carried out. He claims damages under s.82 of the Trade Practices Act and at common law for fraud, negligence and breach of warranty. Ye wee ee 'oe ft whe 7 ay wt ae ' eel PAS 2. The proceedings have not yet advanced beyond the point of delivery of a statement of claim and two competing motions which fall for determination today relating to cognate proceedings commenced ov Hugall & Hoile in the District Court on 17 September 1985. By that action, the company claimed from Spencer the sum of $8,694.00, being the balance of the purchase price said to be due and owing to it in respect of his purchase of the irrigator. It also claimed interest for late payment of $40,000,-said to be part of the purchase price. The statement of claim in that action is dated 18 October 1985 and a defence and counterclaim were filed on or about 31 October. The defence as filed initially, accepted that the relevant agreement was for the purchase of the irrigator from Hugall & Hoile. It raised a set-off by way of damages incurred through non-fulfilment of warranties embodied in the representations xelating to delivery and commissioning § and negligent misrepresentation arising out of the same facts. A counterclaim was raised on the same basis, seeking damages in excess of $35,000.00. No claim was made for breakdowns or careless repairs and it is to be noted that as set up in the application before this Court, these largely occurred after the institution of the District Court action. The District Court action has progressed at a leisurely pace. An amended defence and counterclaim were delivered on 19 June 1986 embodying a plea of the lease agreement with Esanda. 3. Discovery was given by Hugall & Ho1le on 29 July 1986 and by Spencer on 28 August 1986. Interrogatories delivered by Hugall & Ho1le on 16 June 1987 were answered on 3 September 1937. According to the solicitors for Hugall & Hoile the matter is now ready for trial in the District Court. Spencer's intention to uiunstitute an application in this Court was foreshadowed in a letter dated 4 November 1985 from his solicitors to the solicitors for Hugall & Hoile. That letter was in the following terms:~ "Our client has instructed us to issue proceedings in the Federal Court and Counsel is settling the Statement of Claim. : Will you accept service of the Writ or would your client prefer to be served directly? Upon the commencement of the Federal Court action, would your client be prepared to voluntarily stay any further proceedings in the District Court? If not, we shall have to make application for a stay." The settling process referred to in the letter did not lead to the institution of an application in this Court until 3 February 1988. Spencer now moves to restrain Hugall & Hoile from proceeding in the District Court until further order. Hugall «& Hoile seeks to restrain Spencer from further proceeding in this Court. The order sought in that regard is inappropriate, but in substance as was made clear in argument, Hugall & Hoile asks for a stay of the Federal Court application. = 4. The damages sought in this Court as set out in the statement of claim, considerably exceed the monetary limit of the District Court jurisdiction, which is $80,000.00 for matters other than claims arising out of personal injuries. The point of departure for cases such as the present 1s to he found in the principles expressed in the judgment of Mason, Brennan and Deane JJ. in Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 298:- "The first and paramount consideration in the exercise of this discretion is to do what is best in che interests of the litigants. In this respect the Federal Court can resolve the entire controversy; the Supreme Court cannot do so because the second limb of s.86 of the Act stands in its way. The court which can resolve the entire controversy has an obvious advantage. Generally speaking, its determination of all the issues will be made more effectively and more expeditiously and at less expense than the resolution of the controversy which depends on determinations made by two courts in separate proceedings in which the issues are necessarily fragmented. To offset this advantage offered by the Federal Court powerful countervailing reasons need to be shown. For example, 1t may appear that the federal issue is raised at such a late stage in the Supreme Court proceedings that 1t would be a waste of time and lead to needless expense and inconvenience not to proceed to a hearing in that Court. Or it may appear that the federal issue is so insubstantial or removed from the non-federal issues that the Supreme Court should proceed with the determination of those issues. It may even appear that the federal issue is but one of many issues making up the entire controversy and that it 1s indistinguishable from one of the non-federal issues in the sense that the resolution of one necessarily leads to a resolution of the other. In such a case there will be stronger ground for allowing the action to proceed in the Supreme Court." 5. This Court has the jurisdiction to resolve the entire controversy between the parties. The District Court does not, even allowing for recent amendments to the Trade Practices Act. It lacks that jurisdiction because its monetary limit is exceeded by the damages claimed by the applicant. Proceedings in the District Court have reached the point where the matt.r is ready to be entered for trial. It us clear that some, and possibly considerable, inconvenience will flow from the proceeding going ahead in the District Court without a determination of the applicant's claim as pleaded in this Court. The respondent was prepared to consent to a restraint in relation to the District Court proceedings on the applicant's agreement to pay its taxed costs to date. This has not been forthcoming. As to the delay in instituting the application in this Court, I was informed that this was due in part to the need for the applicant to apply for and secure legal aid. There is nothing on affidavit in that regard and, in any event, it could hardly explain the two year delay which has occurred. In my opinion it would be unfair to prevent the respondent from proceeding in the District Court and I will make no order restraining it in that regard. At the same time the claim in this Court is of considerable magnitude and, I think, should be allowed to progress to the point of trial without wet ee epee further delay. Whethez the applicant will wish to do so, ox will seek to scaise his full csoss-claim in the Supreme Court and procuze @ teansfes of the Distsict Coust action to that Coust, is a mattes Fo> him and his advisess. If the vespondent obtains judgment in the District Couct, it may be onen to the anplicant to apply for a stay of execution there pending the sesolution of his claim. I£ the applicant pvoceeds with his present set-off and counterclaim in the District Court, he may find that questions of issue estoppel and possibly ves judicata, are saised in a subsequent hearing in this couzt. But again that is a matter for him and his advisers. In the event, I propose to dismiss both motions. I will hear from the parties as to costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Decision of his Honour Justice French. Associate: owe Wot Date: A Mach 148% 7. Counsel for the Applicant: Mr P.J. Williams Solictors for the Applicant: Mossenson Szklarz & Co. Counsel for the Respondent: Mr R.W. Richardson Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 15 March 1988 Date of Judgment: 21 Marcn 198% ere eer —e