IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY G 315 of 1997 BETWEEN: christopher reeve design pty limited Applicant AND: maravale pty limited First Respondent simon grill Second Respondent JUDGE: HILL J DATE OF ORDER: 8 APRIL 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. In accordance with order 1 in the Notice of Motion, the proceedings be transferred to the District Court of New South Wales, Sydney Registry pursuant to s 10 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 2. The Court recommends to the District Court, subject to any view that that Court might itself take, that the hearing of the proceedings be given priority. 3. The costs of the motion be treated as costs in the District Court proceedings. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY G 315of 1997 BETWEEN: christopher reeve design pty limited Applicant AND: maravale pty limited First Respondent simon grill Second Respondent JUDGE(S): HILL J DATE: 8 APRIL 1998 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT The respondents to these proceedings, Maravale Pty Limited and Simon Grill ("Maravale") moved the Court that the proceedings be remitted to the District Court for hearing and subsequent resolution. The proceedings were commenced on or about 28 April 1997. According to the Statement of Claim which was filed at that time, it is alleged that the applicant in the proceedings, Christopher Reeve Design Pty Limited ("Christopher Reeve") entered into negotiations with Maravale for the lease of a ground floor shop, Gallery 1B, and two carparking areas of premises known as 102-104 Albion Street, Surry Hills. The Statement of Claim alleges that representations were made which induced Christopher Reeve to enter into a lease with the first respondent to the proceedings on 14 June 1996. The representations are said to be false and it is alleged that Christopher Reeve has suffered loss or damage. The damages particularised in the Statement of Claim amount approximately to $260,000. The Statement of Claim is framed by reference to negligence and breaches of ss 52 and 53A of the Trade Practices Act 1974 ("the Act") as well as s 87 of that Act. The claim against the second respondent in the proceedings is apparently based upon s 75B of the Act, in effect making the second respondent an accessory to the breaches of the primary provisions of the Act. The course of the case management appears in an affidavit of Miss Kanellakis which was read without objection. There have been a number of directions hearings, although perhaps not an extraordinary number, with some problems which were brought about because the respondents had served unverified copies of documents and the applicant needed ultimately to file a supplementary list of documents. Looking at the timetable, it cannot be said that either party was responsible for any great delay and, indeed, by 12 December 1997 the matter was ready for hearing and was set down for five days before me, commencing on 11 May 1998. At the time I directed that it be sent for mediation to a registrar of the Court before the hearing took place. That mediation was, unfortunately, unsuccessful. The matter of whether the case should be remitted to the District Court is not a matter that has arisen just today. At the time the proceedings were commenced it is fair to say that, if Christopher Reeve were to succeed and recover the damages claimed, the District Court would not at that time have had jurisdiction. The monetary limits of that Court have now been increased and there is no doubt that the District Court would have jurisdiction to hear the matter and to give the relief which is sought. It is not suggested otherwise. It should perhaps be noted that the evidence of an expert, Stephen John Sherman, filed for Christopher Reeve, estimates total damages now to be $182,521, a figure which is marginally lower than that initially claimed. Correspondence passing between the solicitors for the parties suggests that, some time before September 1997 at least, there had been conversations about the matter being one properly within the District Court and one which ought to be transferred to it. A letter of 1 September 1997 refers specifically to this. The suggestion to remit was rejected by the solicitors for Christopher Reeve, Messrs Clayton Utz, in a letter dated 5 September 1997. That letter notes that: "... your client made no complaint when the proceedings were first commenced and that there have now been three directions hearings in the matter." As I already indicated at the time the proceedings commenced, if the Statement of Claim was accepted, the District Court would not have had jurisdiction to deal with the then monetary claim. As at 11 December 1997 when I set the matter down for trial, obviously both the pleadings were closed and all evidence was ready to proceed. It is not as if no application was then made to me to transfer the matter to the District Court. The possibility of a motion to do so was foreshadowed before me and, at the time, I indicated that Maravale could, by notice of motion at some stage thereafter, move to have the matter transferred to the District Court. The present application by way of motion was only made on 27 February 1998. The only delay that might be capable of explanation for some of that time lies no doubt in the vacation, although it is hardly a compelling explanation for the delay. There is some agreement between the parties to the effect that, if the matter were transferred to the District Court, it would obtain an available call over date which was likely to be 13 May 1998 on which day it would be allocated a hearing date. There being no overseas witnesses it may well be that, on 13 May, the present case would not be given a fixed date and, although as I understand it from what has been said from the bar table, longer matters obtain some degree of priority, it could not be certain that the matter would necessarily be heard on the date allocated to it, in which case a further date would need to be allocated. Looking at this material, it would seem likely that the initial hearing date allocated, if it ultimately proceeded, would be in August although it would well be later if the matter was not reached at that time. Counsel for Maravale submitted that the present case was an appropriate one for remission to the District Court. It was said that, while the matter was first flagged in September 1997, the present was not a case where it was necessarily appropriate then to make an application but rather that one should wait until at least the evidence and pleadings are closed and, in this case, mediation carried out before forming a view as to whether the matter should be appropriately transferred. I must say that, because I did make an order on 12 December 1997 for mediation, an application to transfer to the District Court would have at that time been inappropriate while mediation had a chance to succeed. Of course what happens on mediation is not disclosed to a judge. However, the file indicates that the mediation took place on 6 March 1998 and I am told it was unsuccessful. The present application was made roughly a week before the mediation took place and, in these circumstances, cannot necessarily be said to have been unduly delayed. Counsel for Maravale also pointed to the fact that essentially the case involves no federal matter other than, of course, the trade practices questions which, while being federal matters, are matters in respect of which both the District Court, Supreme Courts of the States and this Court have jurisdiction, subject to monetary limits in the case of the District Court. It was pointed out that in the District Court, hearing fees, if there are any, would be considerably less than those payable in this Court. Costs allowable on a hearing in the District Court might be less than those in this Court, much might depend on the outcome. Counsel for Christopher Reeve relied upon a number of factors. The first, of course, was the size of the claim, which at the time the proceedings commenced was outside the jurisdictional limits of the District Court. He relied also on the fact of what was said to be a delay in filing the motion and, perhaps most cogently, upon the fact that the hearing date had been set in this Court, whereas if the matter were remitted to the District Court, the procedure which I have already outlined would have to be undertaken and not only would there be a delay of approximately four months but there could be even a greater delay if the matter was not reached on the day it was set down for hearing. It was pointed out that the question of costs could be compensated for by appropriate orders. There was perhaps implicit, if not quite explicit, a submission that Maravale was seeking this course to delay the matter. Having regard to the history of the matter and the way in which it was raised through September, December until February, it is perhaps difficult to form a view that there has been any conscious attempt on the part of Maravale to delay the matter. A further matter is perhaps marginally relevant to mention. For reasons which I have explained to the parties, there is a possibility that, although the matter has been set down in this Court, there may need to be a vacation of that fixture, though the probability of whether that will happen is quite uncertain at the moment. It would depend on whether other judges were available to take the hearing in the event that, for reasons I explained to the parties, I may become unavailable. It must be said that there is a real danger that this Court, if it is used to hear matters which can conveniently be heard in the District Court, will be unable to fulfil, in the manner which it has up to date at least succeeded in doing, the role for which it was created, namely as a court specifically designed to hear matter of a special federal kind, particularly, of course matters in respect of which this Court has exclusive jurisdiction. It is obvious enough that, when this Court was established, it was not envisaged that s 52 of the Act would, in essence, confer upon this Court jurisdiction to hear virtually any civil claim. I leave out of consideration altogether the possibility of cross-vesting from the state courts to this court if justice requires that to happen. In Korn v Paisley Robertson Pty Limited (1995) 59 FCR 251, a case which also involved Part V of the Act, although an associated claim for equitable damages was also brought, Beaumont J mentioned a procedure, not interestingly followed in this case, whereby the Court would be informed at the time the proceedings were commenced by the completion of an appropriate form, in the present case left incomplete, to enable the Court to give consideration to what his Honour referred to at an appropriate stage to the possibility of transfer. His Honour referred to that possibility arising particularly where the claim was a relatively small one and raised no federal element and was not otherwise appropriate to be dealt with by this Court. The reference to federal element, of course, was used by his Honour not as encompassing at least Part V which, although giving rise to federal jurisdiction of this Court in the way in which it is now interpreted, no longer really involves a matter that can be called a federal matter in the usual sense of the word. His Honour referred to the spirit of s 86A of the Act inserted in 1987 which removed the exclusivity of this Court's jurisdiction under Part V matters and conferred upon this Court the power to transfer. Certainly, Parliament contemplated that that power would be exercised in an appropriate case. His Honour said at page 252: "It is now accepted that, as a matter of proper judicial administration, relatively small claims should not be dealt with by this Court unless there is a federal or other special element to warrant a use of this Court's jurisdiction. There are a number of reasons underlying this policy." After referring to the report of Lord Woolf, "Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales" of June 1995, his Honour emphasised that, in higher courts, the expense of litigating was greater than in other courts and this was a relevant matter for consideration. As may perhaps now be clear, there are real competing questions in the present case. Generally speaking, an application of this kind should clearly be made before a hearing date otherwise the respondent to such an application is disadvantaged. To some extent what I have just said is affected by policies which have been introduced in the last year or so in the Court where, in many instances, cases may be given a hearing date way before any questions of evidence or pleadings are complete so that it cannot be said to be an inflexible rule that an application not be made after a hearing date has been given. The various competing matters, of course, I have set out in seeking to summarise the submissions made for both sides. I do not think in the present case that the factor of delay excludes my exercising jurisdiction to transfer for the reasons which are already set out. What seems to me to be primarily relevant on both sides is, on the one hand, the fact that there is a hearing date and that there could be some delay to the applicant having the case heard. On the other hand, issues of costs, coupled with the fact that the application had been foreshadowed, and that there is a possibility although, as I have indicated, I am not clear what the probabilities are of it, that in any event the hearing date that has been given in this Court may need to be vacated. In the circumstances, I think the present case should be remitted to the District Court because it seems to me that the delay in hearing on the evidence is not all that great and it might indeed be less than would arise in the Court if it became necessary to vacate the week of 11 May 1998. The first time that I would be able to give a new hearing date would have to be effectively October. Accordingly, I make the following orders: 1. In accordance with order 1 in the Notice of Motion, the proceedings be transferred to the District Court of New South Wales, Sydney Registry pursuant to s 10 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 Cth. 2. The Court recommends to the District Court, subject to any view that that Court might itself take, that the hearing of the proceedings be given priority. 3. The costs of the motion be treated as costs in the District Court proceedings. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill Associate: Dated: 8 April 1998 Counsel for the Applicant: S. White Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: D.E. Baran Solicitor for the Respondent: Clinch Neville Long Date of Hearing: 8 April 1998 Date of Judgment: 8 April 1998