Day v Myer Stores Ltd [2000] FCA 442

FEDERAL COURT OF AUSTRALIA

Day v Myer Stores Ltd [2000] FCA 442

PRACTICE & PROCEDURE – Proceedings – transfer of proceedings – action alleging common law contract claim and breaches of Trade Practices Act 1974 (Cth) – whether in the interests of justice to transfer proceedings to state court – federal claims peripheral to common law claims – deficiencies in pleading federal claims – motion to transfer granted

Trade Practices Act 1974 (Cth), ss 51AA, 52, 82, 86, 86A, 87 Federal Court Rules, O 62 r 36A County Court Act 1958 (Vic), ss 3 and 37(2)(a) Kinna v National Australia Bank Ltd (1988) 81 ALR 410 cited Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 cited Saad v TWT Ltd [1995] AILR 4208 cited Chaplin v Birdogan (1998) 146 FLR 243 cited Martin v Tasmania Development & Resources (1999) 163 ALR 79 cited Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 cited McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689 cited Bankinvest AG v Seabrook (1988) 90 ALR 407 cited Overall v Permanent Trustee Co Ltd [1999] FCA 1385 cited Garcia v National Australia Bank Ltd (1998) 155 ALR 614 cited CATHERINE DAY v MYER STORES LIMITED (ACN 004 143 239) V 653 of 1999 KENNY J MELBOURNE 7 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 653 OF 1999

BETWEEN: CATHERINE DAY

Applicant

AND: MYER STORES LIMITED (ACN 004 143 239)

Respondent

JUDGE: KENNY J

DATE OF ORDER: 7 APRIL 2000

WHERE MADE: MELBOURNE

Upon the undertaking by counsel for the parties to consent in writing to the jurisdiction of the County Court of Victoria, notwithstanding the amount claimed:

THE COURT ORDERS THAT:

1. The matters in the proceeding herein being V 653 of 1999 be transferred to the County Court of Victoria at Melbourne. 2. The motion, amended notice of which is dated 31 March 2000, be otherwise dismissed without prejudice to the respondent's entitlement to renew the applications referred to in pars 1, 2 and 4 of the notice. 3. One third of the costs of and incidental to the motion referred to in par 2 above be payable by the applicant to the respondent. 4. Otherwise the costs of the parties in the proceeding in this Court, including reserved costs, be costs in the cause in the proceeding in the County Court of Victoria. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.