IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DI JUDGE MAKT DATE OF ORDER WHERE MADE JUDGMENT No. OD Te, ) ) No. ACT G 61 of 1994 ) ) ) VISION BETWEEN: LUCINDA JEAN SPIER and HENDRIK ROELOF SPIER Applicants AND: TONY KEMPE HOMES First Respondent TONY KEMPE Second Respondent 29 DEC 1994 Third Respondent FEDERAL COURT OF EDGEMILL PTY LIMITED PRINCIPAL REGIGTAY Fourth Respondent MINUTE OF ORDER NG ORDER rr Neaves J. 23 December 1994 Canberra THE COURT ORDERS THAT: 1. The motion of the respondents, notice of which is dated 29 August 1994, be dismissed. 2. The proceeding in this Court be transferred to the Magistrates Court of the Australian Capital Territory. 3. The respondents pay the applicants' costs of and incidental to the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. - IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G 61 of 1994 DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: LUCINDA JEAN SPIER and HENDRIK ROELOF SPIER Applicants AND: TONY KEMPE HOMES First Respondent TONY KEMPE Second Respondent ty ary oN BRIAN HENRY Third Respondent EDGEMILL PTY LIMITED' , Fourth Respondent CORAM: Neaves J. DATE : 23 December 1994 REASONS FOR JUDGMENT This proceeding was instituted in this Court by application filed on 8 August 1994. The applicants are Lucinda Jean Spier and Hendrik Roelof Spier. The respondents are Tony Kempe Homes, Tony Kempe, Brian Henry and Edgemill Pty Limited. The applicants seek - "1. A Declaration that the Respondents have engaged in misleading and deceptive conduct in contravention of Section 52 of the Trade Practices Act 1974. 2. An order to recover loss and damage from the Respondents pursuant to Section 82 of the Trade Practices Act 1974. 3. Orders pursuant to Section 87(1) & (2) of the Trade Practices Act 1974 to declare void ab initio or otherwise to vary contracts. 4. Any further orders as the Court considers appropriate. 5. Costs of this application." According to the affidavits filed on behalf of the applicants, they signed a contract with Tony Kempe Homes on 13 April 1994 for the erection of a dwelling on certain land near Bundaberg, Queensland owned by Lucinda Jean Spier, although there appears to be some doubt whether all the terms of the contract had then been agreed. It is alleged that, by reason of lack of performance by the building contractor, the contract was rescinded by letter dated 22 June 1994 addressed by Mrs Spier to Mr Brian Henry. That letter also demanded the return of the sum of $500 paid by the applicants by way of initial deposit. The loss and damage sought to be recovered is said to amount to about $16,000. The proceeding is somewhat novel in that' the misleading and deceptive conduct relied upon did not occur prior to, and as an inducement to the applicants to, sign the building contract but is alleged to have occurred after such signing. It also appears that, unless Edgemill Pty Limited is shown to have engaged in the misleading or deceptive conduct, the applicants will need to rely on subs.6(3) of the Trade Practices Act to render the provisions of that Act operative in relation to the transaction in question. On 18 July 1994, the applicants commenced a proceeding in the Small Claims Court in Hervey Bay, Queensland seeking the return of the $500 deposit. That proceeding has subsequently been withdrawn. The proceeding was withdrawn when it became apparent to the applicants that the matter would be transferred to the Queensland Building Tribunal ("the Tribunal") established under the Queensland Building Services Authority Act 1991 (Qld) and that, in any event, it would not resolve all the issues which the applicants wished to raise. The respondents by motion, notice of which is dated 29 August 1994, seek the following orders ~ "1. That these proceedings be dismissed as an abuse of the process of the Court, or in the alternative; 2. That these proceedings be stayed until the completion of the proceedings previously initiated by the applicants; and 3. An order that these proceedings be transferred to the Magistrates Court of Queensland; and 4. Costs of this motion." Order 2 is not now sought in view of the withdrawal of the proceeding in the Small Claims Court. In my opinion, no case has been made which would justify the proceeding in this Court being dismissed or struck out as an abuse of the process of the Court. The contention was advanced in the affidavit sworn by Tony Kempe on 19 August 1994 and filed on behalf of the respondents that the parties are bound by the Queensland Building Services Authority Act 1991 (Qld) and that the dispute between the parties is one which may be determined by the Tribunal. Reference was made during oral argument to subs.97(1) of that Act which provides that, if an action arsing, wholly or predominantly, from a domestic building dispute is brought in a court, and the action could be heard by the Tribunal, the court must, on the application of a party, order that the action be removed to the Tribunal. The submission on behalf of the respondents that the proceeding should be transferred to the Magistrates Court at Maroochydore or Hervey Bay was made against the background that the Magistrates Court would be bound to transfer the proceeding to the Tribunal. In my opinion, the contention that steps should be taken that would result in the matter being heard by the Tribunal is misconceived. The Tribunal would clearly have no jurisdiction to entertain a proceeding under the Trade Practices Act such as that at present before this Court. However, counsel for the respondents accepted that, if the matter were to be transferred to a Magistrates Court in Queensland, the respondents would not apply to have the matter transferred to the Tribunal. In considering whether the matter should be transferred to a Magistrates Court in Queensland, regard must be had to the provisions of s.86 of the Trade Practices Act. Subsection 86(2) invests the several courts of the States with federal jurisdiction within the limits of their several jurisdictions with respect to any matter arising under Division 1 of Part V of that Act in respect of which a civil proceeding is instituted by a person other than the Minister or the Trade Practices Commission. Subsection 86(3), however, provides that nothing in subs.86(2) is to be taken to enable an inferior court of a State to grant a remedy other than a remedy of a kind which the court is able to grant under the law of that State. No material has been put before the Court to establish that a Magistrates Court in Queensland is able to grant a remedy of the kind referred to in subs.87(2)(a), that being one of the remedies sought by the applicants in the proceeding before this Court. But even if a Magistrates Court in Queensland is able to grant a remedy of that kind, I am not Satisfied that the matter should be transferred to such a court. In a case where the applicants reside in the Australian Capital Territory and the respondents carry on business in Queensland, inconvenience will be caused to one or other of the parties wherever the matter is heard. No sufficient reason has been given which would warrant the Matter being transferred to a court outside the Australian Capital Territory. The motion by the respondents is, therefore, dismissed. The question remains, however, whether, having regard to the nature of the matter and the estimate of the amount of the damages that are to be claimed, viz. $16,000, the matter should remain in this Court. Subsection 86(2) of the Trade Practices Act to which reference has already been made also confers jurisdiction on the Magistrates Court of the Australian Capital Territory in matters such as_ that instituted by the applicants in this Court. Subsection 86(3) also provides that nothing in subs.86(2) is to be taken to enable an inferior court of a Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that Territory. That the Magistrates Court of the Australian Capital Territory is able to grant such a remedy appears from subs.6(1) of the Magistrates Courts (Civil Jurisdiction) Act 1982 (ACT). That subsection provides: "6. (1) %In any proceedings that the court has jurisdiction to hear an determine - (a) the court may grant such relief, redress or remedy as the Supreme Court has power to grant in an action of a like nature in that court, and for that purpose the court may make such orders as the Supreme Court has power to make in the like circumstances; and (b) the court shall give effect to any ground of defence or cross-claim, whether equitable or legal, in the same manner and to the same extent as the Supreme Court would do in the like circumstances. " Clearly, the Supreme Court of the Australian Capital Territory has power to grant a remedy of the kind referred to in subs.87(2) of the Trade Practices Act. It follows that the provisions of subs.86(3) of the Trade Practices Act provide no bar to this proceeding being transferred to the Magistrates Court of the Australian Capital Territory. In all the circumstances, I am of opinion that it is appropriate to transfer the proceeding to that Court and I so order. The respondents must pay the costs of the applicants of and incidental to the motion notice of which is dated 29 August 1994. I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Ju Neaves. Dated: 23 December 1 The applicants appeared in person. Mr K.E. Hubert Capon & Hubert Counsel for the respondents Solicitors for the respondents Date of hearing : 2 September 1994 23 December 1994 Date of judgment