Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1416

DOUGLAS STEVENS

THIRD RESPONDENT

JOHN WILLIAMSON

FOURTH RESPONDENT

JUDGE: SACKVILLE J

DATE: 11 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 12 September 2000, I delivered a judgment in these proceedings in which I declined to accede to the applicants' motion that I disqualify myself: [2000] FCA 1292. The judgment describes the proceedings between the parties in this Court and in the Local Court of New South Wales. It also sets out the history of the proceedings in this Court. My earlier judgment should be read in conjunction with this judgment. 2 Certain interlocutory issues remain outstanding. They include the following: · Whether the Court should, of its own motion, make an order transferring the proceedings to a New South Wales court, pursuant to s 86A(1) of the Trade Practices Act 1974 (Cth) ("TP Act"). · Whether an order should be made, as sought by the applicants in their Notice of Motion filed on 1 September 2000, that the Local Court proceedings, between the respondent as plaintiff and the applicants as defendants, be transferred to this Court pursuant to s 86A(4) of the TP Act. Submissions have been received from each of the parties on these questions. 3 Other issues have been raised by the applicants' motion, but they have not yet been the subject of submissions. Accordingly, they will not be addressed in this judgment. 4 For convenience, I set out the terms of ss 86A(1), (2) and (4) of the TP Act: "(1) Where – (a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and (b) a matter for determination in the proceeding arose under Part IVA, IVB or Division 1, 1A or 1AA of Part V; the Federal Court may, subject to sub-section (2), upon the application of a party or of the Federal Court's own motion, transfer to a court of a State or Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding. (2) The Federal Court shall not transfer a matter to another court under sub-section (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that – (a) the matter arises out of or is related to a proceeding that is pending in the other court; or (b) it is otherwise in the interests of justice that the matter be determined by the other court. … (4) 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, 1A, 1AA 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."