Reid, T O v Colonial State Bank of NSW Ltd & Ors [1997] FCA 1010

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) AG 56 of 1997

) ) GENERAL DIVISION )

BETWEEN: T O REID

Applicant

AND: COLONIAL STATE BANK of NSW LIMITED and Ors

Respondent

JUDGE: FINN J PLACE: CANBERRA DATED: 28 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The proceeding AG56 of 1997 be transferred to the Supreme Court of NSW. 2. The Federal Court Registry of the ACT District send all papers relating to this proceeding to the Supreme Court of New South Wales Registry, Queen Square, Sydney together with a copy of these orders. 3. Costs in this proceeding are to be treated as if it was a proceeding as cross-vested in the Supreme Court of New South Wales and are to be costs in the cause. 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 DISTRICT REGISTRY ) AG 56 of 1997

) ) GENERAL DIVISION )

BETWEEN: T O REID

Applicant

AND: COLONIAL STATE BANK of NSW LIMITED and Ors

Respondent

JUDGE: FINN J PLACE: CANBERRA DATED: 28 AUGUST 1997

EX TEMPORE REASONS FOR JUDGMENT There are presently three proceedings on foot between Mrs Reid and the Colonial State Bank of NSW Limited. The first which was filed by the present applicant, Mrs Reid, along with members of her family and a company were commenced in the New South Wales District of the Federal Court on 11 January 1996. That claim related to loan transactions between the applicants and the respondent bank. It was, if I can put it shortly a claim under sections 82 and 87 of the Trade Practices Act 1974 (Cth) in respect of an alleged contravention of section 52. On 13 May 1996, by consent Tamberlin J of this court ordered that that proceeding be transferred to the Supreme Court of New South Wales. Since that date it has been assigned a file number in New South Wales and, subject to a matter to which I will later refer, is a live proceedings in that Supreme Court. The second claim, though not in order of time, was commenced on 28 July 1997 in the Commercial Division of the Supreme Court of New South Wales by the first respondent to the present application against Mrs Reid and four other members of her family. It relates to the same subject matter as the first claim and falls into two parts. The first part sought a declaration that on 11 June 1997 the plaintiff to the proceeding and the five defendants concluded an agreement which was in effect a settlement of the claims between them. The enforcement of that agreement was sought. In the alternative, what was sought was an order for possession of properties given as security for the original loan agreements or a money judgment. Consideration of that matter was adjourned by Rolfe J in the Commercial Division of the Supreme Court of New South Wales on 15 August pending the determination of the notice of motion presently before me. The third claim, which is the present application, was commenced in this registry of this court on 10 July 1997. It relates broadly to the same subject matter - the loan transactions and their treatment - as gave rise to the preceding two claims. It purports to be a representative action. Whether or not it actually complies in this with the requirements of the Federal Court of Australia Act 1977 is a matter I need not consider here. The statement of claim in this application identifies five separate rubrics under which causes of action are alleged to have arisen. The first is a breach of contract; the second for breach of the Bills of Exchange Act 1909 (Cth); the third for negligence; the fourth for fraud, although it is not altogether certain whether the fraud pleaded is common law or equitable fraud; and finally, for contraventions of the Trade Practices Act. In relation to the Bills of Exchange Act claims, the statement of claim does not appear on its face to disclose a cause of action. It may be the case that with amendment of some form, a cause of action could be sufficiently identified. In relation to the Trade Practices Act, the respondents contend that, as at all relevant times the first respondent was then the State Bank of New South Wales and the transactions were in respect of its banking business in New South Wales, the Trade Practices Act did not apply to it. Reliance, of course, was placed on the decision of the High Court in Bourke v State Bank of New South Wales (1990) 170 CLR 276. In her affidavit material filed on these proceedings, Mrs Reid has advanced the proposition that whatever the situation that obtained in the circumstances of Bourke's case, such did not apply in the present instance. I am prepared to assume for the purposes of the present application that there may be an arguable point of distinction, notwithstanding that the privatisation, if I can so describe it, of the State Bank was not completed until December of 1994. It is necessary, though, for me to comment generally on the statement of claim in the proceeding filed in this Territory. There is, as I have indicated, a possibly arguable point under the Trade Practices Act. Notwithstanding that a claim is based on the Bills of Exchange Act, it does not, on its face, disclose an obvious cause of action. All other claims made - they appear to be the substantial claims (apart from that under the Trade Practices Act) are in relation to causes of action in which this court would have no jurisdiction apart from the cross-vesting legislation. The present notice of motion before me was filed on 7 August 1997. It is brought under the Jurisdiction of Court's Cross-Vesting Act, 1987 and it seeks a transfer of these proceedings to the Supreme Court of New South Wales. Reliance is of course placed upon section 5 of that statute and it is argued that it is in the interests of justice that the application filed in this Court be determined in the Supreme Court. I merely note here without quotation, the guidance given by the Supreme Court of the Australian Capital Territory in Dawson v Barker (1990) 123 FLR 194 on the factors of which account ought be taken in exercising the discretion conferred by section 5 in considering the interests of justice. Mrs Reid, who appeared for herself on the hearing of this motion, did accept in cross-examination that the present application as such had no connection at all with the Australian Capital Territory. I would note that she and her invalid husband live in Moruya and insofar as I have evidence of it before me, the other members of her family appear to live in rural New South Wales. The relevant transactions all occurred in New South Wales. All of the properties the subject of alleged securities owing to the bank are in New South Wales. They are located mostly in the area north of the Australian Capital Territory or in what is described as the south coast of New South Wales. It is accepted that no witnesses reside in the Territory, and that no evidence in this proceedings is to be found in the Territory. I would note that the principal witnesses of the respondents all reside in Sydney. The principal reason given by Mrs Reid for commencing the proceedings in this registry of this Court can be subsumed under the description "convenience", by which she meant that the cost to her would be more significant if the matter was heard in Sydney than in Canberra. A Sydney venue would have a greater dislocating effect on her work than would be the case if the matter was heard in Canberra. And she would find the travel necessary for the prosecution of her claim to be less stressful if the matter was heard in Canberra. During the hearing, I raised the question whether, if the notice of motion before me was not one to cross-vest the matter to the Supreme Court of New South Wales, but was simply one to transfer it to the Sydney Registry of the Federal Court, would there be proper grounds for making an order for its transfer? In my view, given the location of the parties and witnesses, very considerable considerations of cost to all concerned would arise in such an application and without expressing a concluded view on the matter, it would in my view, be a difficult application to refuse. But that is not the application before me. The motion, as I have indicated is to have the matter cross-vested. I have already referred to the claims in this matter. Save for the possible Trade Practices Act claim, there is no significant federal element in the claims made and possibly no federal element at all. That, it seems to me, is a matter of no little significance beyond the matters to which I have already referred in determining whether in the interests of justice this matter should be heard in the Supreme Court of New South Wales. It is obviously desirable that all of the three claims, the subject of these various proceedings are determined, if possible, in a fashion where they can be brought together if necessary. Two of those claims, as I have indicated already, are in the Supreme Court of New South Wales, the first was initiated in this court and was by consent cross‑vested to the Supreme Court. Mrs Reid now contests the desirability of that cross-vesting order. Be this as it may, it is there that those proceedings are currently located. More importantly, the second of those proceedings does raise directly the question of a settlement of this matter, that settlement relating to the first claim that was cross‑vested to the Supreme Court of New South Wales. It is, in my view, demonstrably the case that the proceeding here has been begun in an inappropriate registry and in an inappropriate court for the proper hearing and determination of this matter. There is, as I have indicated, no significant federal element in the claims and possibly none at all. The matter relates to transactions, events and people in New South Wales. The respective burdens on the parties in having the matter heard in one registry or another are such, in my view, that the convenience to which Mrs Reid refers does not outweigh the potential inconvenience to witnesses and parties of being brought to a part of the country to in which the claim has no relationship and in which those parties and witnesses do not reside. In these circumstances, I intend to order that the proceedings AG 56 of 1997 be transferred to the Supreme Court of New South Wales. There are a series of consequential orders, I think, that will be necessary to make. I will also order that the Federal Court Registry of the ACT District send all papers to the Supreme Court of New South Wales Registry, Queen Square, Sydney together with a copy of the order. There remains the question of the costs of this motion. The course I think I would prefer to take on costs is that taken by Tamberlin J in the original proceedings and have the costs treated as costs in the cause but on the basis that this notice of motion should itself be treated as if it was a proceeding as cross-vested in New South Wales. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn