CATCHWORDS TRADE PRACTICES - s86A(4) of Trade Practices Act 1974 (Cth) - application for proceedings in District Court of New South Wales to be transferred to Federal Court - related proceedings commenced in Federal Court - whether appropriate in exercise of discretion to transfer proceedings - factors applicable to exercise of discretion - interests of justice demand two proceedings be before court which can order that they be heard together. Trade Practices Act 1974 (Cth) s86(3) and s86A(4) Fencott and Others v Muller and Another (1983) 152 CLR 570 Kinna v National Australia Bank Ltd (1988) 81 ALR 410 No SG 18 of 1995 TRADE PRACTICES COMMISSION v PORT ADELAIDE WOOL COMPANY PTY LTD (ACN 007 884 282) and JOHN ROSS SINCLAIR Branson J Adelaide 13 October 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 18 of 1995 ) GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION Applicant - and - PORT ADELAIDE WOOL COMPANY PTY LTD (ACN 007 884 282) First Respondent - and - JOHN ROSS SINCLAIR Second Respondent MINUTES OF ORDER CORAM: Branson J PLACE: Adelaide DATE: 13 October 1995 1. Pursuant to s86A(4) of the Trade Practices Act 1974 (Cth) the Court directs the District Court of New South Wales at Sydney to transfer to the Federal Court of Australia at its South Australian Registry the whole of the proceedings No 2446 of 1993 between Unilan (Australia) Pty Limited as plaintiff and Port Adelaide Wool Company Pty Ltd as defendant. 2. Costs of and incidental to the notice of motion dated 6 September 1995 are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 18 of 1995 ) GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION Applicant - and - PORT ADELAIDE WOOL COMPANY PTY LTD (ACN 007 884 282) First Respondent - and - JOHN ROSS SINCLAIR Second Respondent REASONS FOR DECISION CORAM: Branson J PLACE: Adelaide DATE: 13 October 1995 The respondents to these proceedings have applied by notice of motion dated 6 September 1995 for an order pursuant to s86A(4) of the Trade Practices Act 1974 (Cth) that proceedings No 2446 of 1993 in the District Court of New South Wales at Sydney between Unilan (Australia) Pty Limited ("Unilan") as plaintiff and the first respondent in these proceedings ("Port Adelaide Wool") as defendant ("the NSW proceedings") be transferred to the Federal Court of Australia at its South Australia Registry. The intent behind this application is to achieve a situation in which the NSW proceedings and these proceedings can be heard together. On the notice of motion coming on for hearing I heard counsel for the respondents in support of the application and counsel for Unilan and counsel for the applicant in these proceedings respectively in opposition to the application. On that day I directed the transfer to the Federal Court at its South Australia Registry of the whole of the NSW proceedings. I indicated that I would publish my reasons later. These are those reasons. In the NSW proceedings Unilan seeks damages against Port Adelaide Wool alleging the sale and delivery to it by Port Adelaide Wool of wool which was not in accord with a certificate issued by the Australian Wool Testing Authority. The causes of action pleaded are breach of contract, breaches of conditions implied by the Sale of Goods Act 1923 (NSW), breach of collateral warranty and contravention of s52 of the Trade Practices Act. In these proceedings the Trade Practices Commission ("TPC") seeks an injunction restraining Port Adelaide Wool:- "... in trade and commerce, by itself, its servants or agents from - (a) engaging in conduct in connection with the supply or possible supply of wool, whereby it agrees to supply particular wool in compliance with objectively measured specifications as to quality and composition of that wool as certified by a wool testing organisation, and supplying wool not complying with those specifications. (b) making representations in connection with the supply or possible supply of wool, that it will supply particular wool in compliance with objectively measured specifications as to quality and composition of that wool as certified by a wool testing organisation, and supplying wool not complying with those specifications. (c) making statements in connection with the supply or possible supply of wool, that it will supply particular wool in compliance with objectively measured specifications as to quality and composition of that wool as certified by a wool testing organisation, and supplying wool not complying with those specifications." In support of its application in these proceedings the TPC pleads two contractual dealings between Port Adelaide Wool and Bloch and Behrens Pty Ltd and one contractual dealing between Port Adelaide Wool and Unilan. In respect of each of the three dealings it is pleaded that Port Adelaide Wool agreed to supply wool meeting the specifications set out in Australian Wool Testing Authority certificates but in fact supplied wool which did not comply with the relevant certificates. The contractual dealing between Unilan and Port Adelaide Wool upon which the NSW proceedings are based is the same contractual dealing pleaded in these proceedings. In each of the proceedings it will be necessary for the court to determine:- (a) the terms of the contract between Unilan and Port Adelaide Wool; (b) whether the wool supplied by Port Adelaide Wool to Unilan complied with the requirements of the contract; and (c) whether Port Adelaide Wool engaged in conduct which amounted to a contravention of s52 of the Trade Practices Act. The NSW proceedings were commenced in this Court in its New South Wales District Registry. The claim for damages is in an amount only slightly in excess of $100,000. The NSW proceedings were transferred to the District Court of New South Wales by a judge of this Court apparently of his own motion. The present proceedings had not then been commenced. Section 86A(4) of the Trade Practices Act provides as follows:- "Where - (a) a proceeding is pending in a court (other than the Supreme Court) of a State or Territory; and (b) a matter for determination in the proceeding arose under Part IVA or Division 1 or 1A of Part V, the court shall, if directed to do so by the Federal Court, transfer to the Federal Court the matter referred to in paragraph (b) and such other matters for determination in the proceeding the determination of which would, apart from any law of a State or of the Northern Territory relating to cross-vesting of jurisdiction, be within the jurisdiction of the Federal Court as the Federal Court determines." I have not been referred to any authorities dealing with s86A(4), nor have I been able to find any. The NSW proceedings are pending in a court, other than the Supreme Court, of the State of New South Wales. A matter for determination in those proceedings arose under Division 1 of Part V of the Trade Practices Act - i.e. under s52 of the Trade Practices Act. The other matters for determination in the NSW proceedings are matters the determination of which would, apart from any law of the State of New South Wales relating to cross-vesting of jurisdiction, be within the jurisdiction of the Federal Court (Fencott and Others v Muller and Another (1983) 152 CLR 570). In such circumstances this Court has jurisdiction to direct that the NSW proceedings be transferred to the Federal Court. It was not suggested on behalf of any party that, should a direction be made pursuant to s86A(4) of the Trade Practices Act, it would be appropriate or desirable for the Court to direct that anything less than the whole of the NSW proceedings should be directed to be transferred. The issue for determination is that of whether it would be appropriate, in the exercise of my discretion, to direct the transfer to this Court of the NSW proceedings. Unilan is not itself a party to the present proceedings in this Court: it does not wish to become caught up in these proceedings. No attempt was made before me to establish that Unilan would be liable for costs at a higher rate if it were obliged to litigate in this Court rather than in the District Court of New South Wales. I am not prepared to assume that it would. It was contended, however, that these proceedings could be expected to take longer than the NSW proceedings heard alone and that for this reason Unilan would be prejudiced in respect of costs by any direction for the transfer to this Court of the NSW proceedings for the purpose of their being heard together with these proceedings. Having heard argument in this matter it seems to me to be likely that the NSW proceedings, if they were to proceed in the District Court of New South Wales, might well take longer than the solicitor for Unilan has estimated in her affidavit. It also seems to me that these proceedings might well take a shorter time than the initial estimate of the TPC. I do not consider that any order which might be made for the two proceedings to be heard together need necessarily add to the likely length of these proceedings. Nonetheless I accept that Unilan is likely to incur additional legal costs if this application succeeds and is followed, as it seems inevitable that it will be, by an application for an order that the two proceedings be heard together. This is a factor to be given weight in the exercise of my discretion (Kinna v National Australia Bank Ltd (1988) 81 ALR 410). However, I do not consider that it is of compelling weight. Moreover appropriate case management, in my view, ought to be able to contain the extent of such additional legal costs. Of course, I note that if this application does not succeed Port Adelaide Wool will incur the costs of presenting its case with respect to its contractual dealings with Unilan in two different jurisdictions. It appears likely that if a direction for their transfer to this Court is not made, the NSW proceedings will come to trial in about June 1996. No hearing date has yet been set for the present proceedings. Even if an order is made for these proceedings and the NSW proceedings to be heard together, I can not presently see any reason why such hearings could not be completed before June 1996. In my view the factor which tells decisively in favour of exercising my discretion by directing the transfer of these proceedings to the Federal Court is that in this Court an order can be made for the two proceedings to be heard together. It is not clear that the District Court of New South Wales would have the jurisdiction to make the orders sought in these proceedings (Trade Practices Act s86(3)). In any event no party seeks the transfer of these proceedings to the District Court of New South Wales. I consider that the interests of justice strongly favour these two proceedings being before this Court which can order that they be heard together. Although the present proceedings are of a wider ambit than the NSW proceedings, matters of fact and law which presently require to be determined in the NSW proceedings must also be determined in these proceedings. The persons presently intended to be called as witnesses in the NSW proceedings will be required to give evidence on the same issues in these proceedings. Documents presently intended to be placed in evidence in the NSW proceedings will need to be placed in evidence in these proceedings. Not only will inconvenience and inefficiency result if the two proceedings continue in different courts, there is also the potential embarrassment of inconsistent determinations being made by the two courts. For the above reasons I directed the transfer to this Court of the NSW proceedings. I certify that this and the preceding pages are a true copy of the Reasons for Decision of Justice Branson. Associate: Dated: Counsel for the Applicant : Ms S Maharaj Solicitors for the Applicant : Australian Government Solicitor Counsel for the First and Second Respondents : Mr M Abbott QC Solicitors for the First and Second Respondents : Kelly & Co Counsel for Unilan (Australia) Pty Ltd : Mr S White Solicitors for Unilan (Australia) Pty Ltd : Goldsmiths Hearing Date : 9 October 1995