FEDERAL COURT OF AUSTRALIA Johnson Tiles Pty Ltd v Esso Australia Limited [2001] FCA 421 COURTS – practice and procedure – cross-vesting – representative proceeding involving federal and common law claims – federal claim struck out – real issue raised about the Court's accrued jurisdiction in respect of the common law claim – whether it is in the interests of justice to transfer the proceeding to the Supreme Court Federal Court of Australia Act 1976 (Cth) Pt IVA s 33G Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s 5(4)(b) Supreme Court Act 1986 (Vic) s 4A Federal Courts (State Jurisdiction) Act 1999 (Vic) s 11 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 - distinguished McIntosh v National Australia Bank Ltd (1988) 17 FCR 482 - distinguished Bell Group v Westpac (2000) 173 ALR 427 - considered JOHNSON TILES PTY LTD v ESSO AUSTRALIA LIMITED VG 519 OF 1998 AND VG 524 OF 1998 JUDGE: MERKEL J DATE: 12 APRIL 2001 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 519 OF 1998 VG 524 OF 1998 BETWEEN: JOHNSON TILES PTY LTD AND OTHERS APPLICANTS ESSO AUSTRALIA LTD AND ANOTHER RESPONDENTS/CROSS-CLAIMANTS AND: STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS CROSS RESPONDENTS/CROSS-CLAIMANTS BHP PETROLEUM (BASS STRAIT) PTY LTD CROSS-RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 12 APRIL 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT within 14 days the applicants bring in agreed minutes of orders to give effect to these reasons for judgment and, in the event that any party is not in agreement with the orders proposed by the applicants, that party bring in its proposed orders within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 519 OF 1998 VG 524 OF 1998 BETWEEN: JOHNSON TILES PTY LTD AND OTHERS APPLICANTS ESSO AUSTRALIA LTD AND ANOTHER RESPONDENTS/CROSS-CLAIMANTS AND: STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS CROSS-RESPONDENTS/CROSS-CLAIMANTS BHP PETROLEUM (BASS STRAIT) PTY LTD CROSS-RESPONDENT JUDGE: MERKEL J DATE: 12 APRIL 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In September 1998 an explosion and fire occurred at the respondents' ("Esso") Longford plant. Shortly thereafter the applicants commenced a representative proceeding against Esso under Pt IVA of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). Esso brought a cross claim seeking contribution and indemnity from numerous cross respondents, including agencies of the State of Victoria ("the State entities"). 2 The applicants' proceeding in this Court was based on two causes of action: negligence and breach of s 52 of the Trade Practices Act 1974 (Cth). After numerous interlocutory challenges to the s 52 claims, a Full Court finally struck them out as untenable: see Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000) FCA 1572. Although a Pt IVA proceeding requires a federal claim to found the jurisdiction of the Court (s 33G of the FCA Act), the Full Court concluded that the Court's accrued jurisdiction enabled it to hear and determine the negligence claims. 3 On 16 February 2001 the High Court granted Esso and the State entities special leave to appeal against the Full Court's decision that this Court has jurisdiction in respect of the negligence claims. In substance, Esso and the State entities claim that only the Supreme Court of Victoria has jurisdiction in relation to negligence claims, with the consequence that any proceeding based on such claims must be commenced and determined in that court, rather than in the Federal Court. As a condition of the grant of special leave, the High Court required Esso and the State entities to undertake that, in the event of the appeal succeeding, they will consent to orders that all interlocutory steps taken in the representative proceeding in this Court stand as interlocutory steps taken in any new proceeding commenced by the applicants in the Supreme Court. 4 The negligence claims are not statute barred until September 2004. Accordingly, the sole significance of the jurisdictional dispute is to determine whether the negligence claims are to be heard in this Court or in the Supreme Court. The present case is yet another example of the problems created by the return of the "arid" jurisdictional disputes that bedevilled litigation in the earlier part of the 1980s (Fencott v Muller (1983) 152 CLR 570 at 609). 5 The applicants and the group members they represent desire a hearing of their negligence claims in a court that has undoubted jurisdiction to hear those claims. When the representative proceeding was commenced in this Court no real issue was raised as to its jurisdiction to hear the matter. That situation changed after the Full Court struck out the s 52 claim and the High Court granted special leave to appeal against the Full Court's decision that the Court has jurisdiction in the matter. The jurisdictional dispute has now been further broadened as a result of Esso's application to amend its defence to challenge the constitutional validity of Pt IVA. Although a Full Court has upheld Pt IVA as valid (Femcare Ltd v Bright (2000) 100 FCR 331), on 15 December 2000 the High Court referred the application for special leave to appeal in that matter to a Full Court of the High Court to be heard as if it was an appeal. It is unlikely that the two jurisdictional issues will be resolved for some time as the parties indicated that the appeals will not be heard until towards the end of 2001. 6 It was in the above context that I listed the proceeding for directions and orders concerning the future conduct of the matter. The main issue I raised with the parties was whether the matter should remain in the Court to await the outcome of the appeals or whether it should now be cross vested under s 5(4) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) ("the CVA") to the Supreme Court of Victoria. 7 Under s 5(4) of the CVA the Court may transfer the proceeding to the Supreme Court if there is a related proceeding pending in that Court and it is more appropriate that the proceeding be determined in that Court (s 5(4)(b)(i)) or if it is otherwise in the interests of justice that the proceeding be determined in the Supreme Court (s 5(4)(b)(iii)). Under s 5(7) the Court may transfer the proceeding, inter alia, on the application of a party or of its own motion. Section 11(3) provides that where a proceeding is transferred, subject to any order of the transferee court, the steps taken in the transferring court shall stand as if the steps were taken in the transferee court. 8 The applicants preferred option was for the proceeding to remain in this Court to await the outcome of the appeals in the High Court. Alternatively, they sought a stay of the proceeding in this Court so they could commence and pursue a group proceeding in the Supreme Court. The applicants least preferred position was a cross-vesting of this proceeding to the Supreme Court. The applicants' counsel stated that if the latter course was determined by the Court to be in the interests of justice, the applicants would wish to be afforded the opportunity to commence a group proceeding in the Supreme Court so the proceeding transferred from this Court could be consolidated or heard together with that proceeding. 9 The reasons for the applicants' preferences were not altogether clear. It appears that their main fear was that if the Federal Court proceeding was found to fail for want of jurisdiction then its transfer to the Supreme Court may not found jurisdiction in that Court. A further concern related to whether the Federal Court representative proceeding would be deemed by s 11(3) of the CVA to have been commenced prior to the Supreme Court having jurisdiction in group proceedings. In that regard, Pt 4A of the Supreme Court Act 1986 (Vic), which conferred that jurisdiction on the Supreme Court, only came into operation as from 1 January 2000. Understandably, the applicants were concerned to retain the benefit of the undertakings extracted from Esso and the State entities by the High Court and thereby minimise the risk of duplication of interlocutory proceedings and of liability for interlocutory costs incurred in this Court in the event it is found that the Federal Court is without jurisdiction in the matter. 10 Esso was not prepared to move the Court to cross-vest the proceeding in the Supreme Court but supported the Court doing so of its own motion. Esso was also not prepared to proffer undertakings to the effect of those given to the High Court, notwithstanding that the transfer would effectively deliver to Esso the result it is seeking on the appeal. 11 The State entities argued that the proceeding should not be cross-vested and should remain in this Court pending the outcome of the High Court appeals. That position is not easily reconciled with the State entities' claim that only the Supreme Court can have jurisdiction in the matter. However, the State entities argued that the course contended for by them was necessary if the State entities were to obtain the protection of s 11 of the Federal Courts (State Jurisdiction) Act 1999 (Vic), which would enable the Supreme Court to treat the Federal Court proceeding as validly brought in the Supreme Court in the event that the High Court allows the appeals of the State entities and Esso. The remaining cross respondents adopted the submissions of the State entities. 12 In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 French J (with whom Beaumont J and Finkelstein J agreed) stated (at [95]): "The question whether the common law claim should continue in this Court or should be stayed on the basis that it be pursued in the Supreme Court of Victoria is to be decided by determining whether or not this Court should decline to exercise its jurisdiction properly invoked in this matter. There can be no doubt that the Supreme Court of the State of Victoria is as well equipped as this Court to deal with a claim in negligence and the associated cross-claims. The action for negligence is one which could well have been commenced in the State Supreme Court. Nevertheless, the applicants having commenced their proceedings in this Court and having properly invoked federal jurisdiction, there would need to be demonstrated some reason for this Court declining to fulfil what would ordinarily be its obligation to exercise its jurisdiction. While the claim is a non-federal claim it is based not upon a statute peculiar to Victoria but upon the common law of Australia, albeit the question of liability may turn in part upon at least one Act of the Victorian Parliament, namely the Gas Industry Act 1994 (Vic) and the Victorian Gas Customer Service Code which is incorporated into the terms of gas retail licences issued under the Act. Further, and from a practical point of view, all parties have expended considerable time and incurred substantial costs in the proceedings in this Court. The statement of claim has been through a process of refinement. The discovery process is about eighty per cent complete and has cost millions of dollars according to counsel for the State Entities. The case is in the docket of a Judge who is thoroughly familiar with it. There is no reason now to impose upon the parties the additional burdens associated with this Court declining further to exercise its jurisdiction notwithstanding that it has before it an arguable claim of considerable importance and complexity. In my opinion, the Court ought not to decline the jurisdiction which it has. The negligence claim should therefore continue in this Court." 13 French J was dealing with the question of whether the Court "should decline to exercise its jurisdiction properly invoked in this matter" by staying the Federal Court proceeding because the federal claim had been struck out. In that context his Honour concluded that the Court ought not decline to exercise its jurisdiction and that the negligence claims should continue in this Court. 14 As the negligence claims were ready to proceed to trial, I fixed those claims for hearing in April 2001. The hearing date was vacated as a result of parallel criminal proceedings in the Supreme Court. However, more importantly for present purposes, the issue of whether this Court has jurisdiction in the representative proceeding is now to be finally determined in the two appeals to the High Court. Although two Full Courts have determined that the Court has jurisdiction, it seems to me that the fact that the High Court has granted special leave to appeal in one of the cases and is treating the other as an appeal to it, warrants the conclusion that the appeals have raised a real issue about this Court's jurisdiction, with the risks and uncertainty that entails for the future conduct of the proceeding in this Court. It is in that quite different context that I turn to consider the separate and distinct question of whether it is now in the interests of justice that the proceeding be transferred to the Supreme Court. 15 I have concluded that it is in the interests of justice that the proceeding be transferred to the Supreme Court of Victoria under s 5(4)(b)(iii) of the CVA. My reasons, cumulatively, for arriving at that conclusion are as follows. 1. The proceeding in this Court, now being a common law proceeding in negligence, no longer has any federal cause of action appropriate for determination in the Court. Similarly, the issues raised on the cross-claim will no longer involve any substantial federal cause of action. Generally, absent a special reason, it is appropriate that common law causes of action arising in matters that do not have a federal claim are heard and determined in the State courts having jurisdiction in such matters. I accept, for the reasons stated above by French J, that the fact that the federal claim is no longer proceeding does not, of itself, constitute a reason why the Court should decline to exercise its jurisdiction in the matter. Thus, while this factor alone would not warrant the transfer of the present proceeding, it can, together with other factors, warrant a transfer. 2. The present proceeding will severely tax the resources of this Court to hear and determine all of the claims in the matter. The State court system, as a whole, is far better placed to finally dispose of the damages claims of applicants and the group members if the negligence claims succeed at trial. Indeed, it is inevitable that there will be a transfer of the damages claims to the State system at some stage if the applicants establish liability and the significant claims are to be determined litigiously. In such circumstances there is much to be said in favour of the State system taking charge of the matter sooner, rather than later 3. When the proceeding was commenced in this Court the Supreme Court did not have a jurisdiction that is equivalent to that conferred by Pt IVA. Since then the Supreme Court Act 1986 (Vic) has been amended by the addition of Pt 4A to enable group proceedings to be commenced in the Supreme Court in respect of a cause of action, whether arising before or after 1 January 2000 (see s 33B). Pt 4A is not relevantly different in its operation to Pt IVA of the FCA. Obviously, no federal cause of action is required to found State jurisdiction. Furthermore, notwithstanding the decision in Kable v The Director of Public Prosecutions for the State of New South Wales (1997) 189 CLR 51, State parliaments have greater latitude than the federal parliament in conferring non-judicial power on a court, and there is no express constitutional limitation on the power of the State parliament to confer jurisdiction on the Supreme Court in a litigious dispute that may not be a "matter" for the purposes of ss 76 and 77 of the Constitution. Thus, the obstacles confronting a successful challenge to the validity of Pt 4A, or to the Supreme Court's jurisdiction in a group proceeding, appear to be less than those confronting such a challenge to the Federal Court's jurisdiction under Pt IVA. Consequently, at the present time, the risk of absence of jurisdiction in the present matter is less in the Supreme Court than it is in the Federal Court. It is appropriate that this Court should facilitate the hearing of the dispute in a venue with the least risk of absence of jurisdiction to determine it. 4. Of course, if the Court is found not to have jurisdiction in the matter it may not have jurisdiction or power to transfer the proceeding to another court. However, as was anticipated in the undertakings given to the High Court, it is plainly open to the applicants to commence a group proceeding under Pt 4A in the Supreme Court and thereby remove any problems they perceive might arise from the fact that the transferred proceeding might not found jurisdiction in the matter. Thus, the risk of that latter event occurring is easily obviated by the applicants. In arriving at these conclusions I am cognisant of the fact that two Full Court decisions have upheld the jurisdiction of the Court on each of the issues to be argued before the High Court but, as I explained above, the appeals to the High Court have, at the least, raised a real issue as to the Court's jurisdiction. 5. The Court has authorised the publication, as required by Pt IVA, of opt out notices to the public. At the time the notices were published no real issue was raised as to the jurisdiction of the Court to hear and determine the matter. Consequently, a very large number of persons who did not opt out, with good reason, are entitled to expect that their claims are the subject of adjudication in a court having jurisdiction to do so. Many such persons (or their insurers) might have desisted from bringing their own claims in reliance upon this expectation. In these circumstances, at least in so far as group members are concerned, the interests of justice are best served by this Court taking appropriate steps to enable the claims to be brought on for the earliest possible hearing before the court least exposed to the risk of absence of jurisdiction to hear such claims, which has now become the Supreme Court. 6. As appears to have been readily accepted by the High Court, even if it is found that the Federal Court is without jurisdiction in the matter, all interlocutory steps taken in the Federal Court proceeding ought to stand as interlocutory steps taken in any group proceeding issued by the applicants in the Supreme Court. Indeed, special leave was only granted on the basis that undertakings to that effect were given by Esso and the State entities. While I cannot make an order to that effect and Esso has declined to give undertakings equivalent to those given by it to the High Court, s 11(3) of the CVA effectively produces the same result, subject to any order of the Supreme Court. It seems to me that it is almost inconceivable that a Supreme Court judge, whether in the transferred proceeding or in a new proceeding, would require the parties to duplicate all the procedural steps taken to date or make any order that might render those steps nugatory. At the least, the prospect of a judge making such an order, or an order to similar effect, is so remote that I do not regard it as constituting a real risk. 7. Further I can, and propose to, order that the taxed costs of all interlocutory steps taken by any party in this Court in the proceeding, other than steps taken in relation to an appeal to a Full Court or steps that are the subject of a specific costs order against a party, be the party's costs in the cause. In that regard I intend "the cause" to mean the ultimate outcome on the merits of the Federal Court proceeding or of any counterpart proceeding in the Supreme Court, it being my intent that costs follow the event, irrespective of the outcome of any jurisdictional or procedural disputes in relation to this Court's jurisdiction. It seems to me that such an order gives effect to the spirit of the undertakings proffered to the High Court and is plainly in the interests of justice. Indeed, no party submitted that such a costs order would be an inappropriate exercise of my discretion. Accordingly, the risks of the steps taken in this Court being rendered nugatory; of the applicants having to duplicate such steps; and of the applicants incurring unnecessary expenditures or being exposed to any real risk concerning them, is so slight that I do not regard them as sufficient to warrant declining to transfer the matter to the Supreme Court. 8. Thus, for the reasons set out in paras 6 and 7 above, while the applicants might lose the benefit of the undertakings given to the High Court, I do not regard that loss as likely to result in any significant risk of harm or injustice to them. 9. For similar reasons I do not regard the State entities' reliance upon the Federal Courts (State Jurisdiction) Act 1999 (Vic), and in particular s 11, to be well founded. Under that section a party to a Federal Court proceeding that fails for want of jurisdiction can apply to the Supreme Court for an order that the Federal Court proceeding be treated for all purposes as a Supreme Court proceeding that is deemed to have been brought on the day the Federal Court proceeding was commenced. As explained above, the State entities' concern to maintain the validity of steps taken so far is met, in a practical sense, by the transfer and costs orders I propose to make. Further, the statutory requirement that the Supreme Court proceeding be deemed to have been commenced on the date of the commencement of the Federal Court proceeding might itself give rise to uncertainty as, on that date, Pt 4A had not been enacted. In any event, I do not regard the State entities' claim that s 11 protects them from the uncertainties that might arise if their appeal on jurisdiction succeeds, to be a persuasive factor against a transfer of the proceeding under the CVA to the Supreme Court. 10. I was referred to the decision of Gummow J in McIntosh v National Australia Bank (1988) 17 FCR 482 at 483-484 ("McIntosh") where his Honour discussed the problem of the Federal Court transferring a case to a court where there were no parallel proceedings on the ground that there was real doubt as to the Court's accrued jurisdiction in the matter. His Honour pointed out that, as the transfer itself was an exercise of federal jurisdiction, it was anomalous to suggest that it was in the interests of justice to order the transfer on the ground that there is a real doubt as to whether there is jurisdiction in the matter. However, McIntosh was recently distinguished by Carr J in Bell Group v Westpac (2000) 173 ALR 427 at 472-473 where his Honour said: "I think McIntosh can be distinguished from the present case. First, the doubt was the sole basis for the respondent's motion in that case. In this application it is simply one, although an important one, of several factors which in my view make it more appropriate that the proceeding be determined by the Supreme Court. Secondly, the doubt about jurisdiction was very narrowly confined in McIntosh and easily resolved by Gummow J on an examination of the pleadings. The present matter is far more complex, even labyrinthine, as the above reasons may demonstrate. There are so many different computations of circumstances, any one of which might, on appeal, disclose a jurisdictional deficiency. There would be no such problems in the Supreme Court." Similar observations can be made in the present case. Further, although there is not presently a parallel proceeding in the Supreme Court, there will almost certainly be one when the transfer takes place, or shortly thereafter. Thus, I do not regard the fact that the High Court appeals raise a real issue about jurisdiction in the present case as sufficient to outweigh the other factors that make it in the interests of justice to transfer the matter to the Supreme Court. 11. Although I am reluctant to transfer the proceeding of my own motion, the circumstances of the present case are, to say the least, unusual. While the applicants did not support the transfer as their preferred option, they made it clear that, if there was to be a transfer, they wanted to ensure there was a parallel proceeding by them in the Supreme Court. Their concerns were mainly about procedural and costs risks, rather than about any substantive injustice they might suffer in the prosecution of their claims. Esso supports the transfer but wishes to keep its options open by not making its own application for it. There is a degree of approbation and reprobation about its position, which is not looked upon by the courts with much favour. The same might also be said about the State entities' position of challenging the jurisdiction of this Court but seeking from the Court complete protection from the uncertainties that their challenge might create. It seems to me that these circumstances should not deter the Court from doing, albeit of its own motion, what it regards as in the interests of justice, rather than what the individual parties might regard as in their best tactical interests. 12. Although there must, necessarily, be some uncertainty as to when the Supreme Court might hear the negligence claims, the probability is that it will be able to do so before this Court will be able to do so. As explained above, the outcome of the High Court appeals is unlikely to be known until well into 2002. 13. I accept that it might ultimately be found by the High Court that the Court has no jurisdiction in the matter, with the consequence that the transfer may not found any jurisdiction in the Supreme Court in respect of the transferred proceeding. However, Full Court decisions, which are binding upon me, have determined that the Court has jurisdiction and, notwithstanding the High Court appeals, I regard myself as entitled to act on the basis of having both the jurisdiction and the power under s 5(4)(b)(iii) to transfer the proceeding. 16 I have some concern about whether I should afford the applicants the opportunity of commencing a Pt 4A proceeding in the Supreme Court prior to the transfer of the matter. It is not suggested that the present jurisdictional dispute has been the fault of the applicants or of their own making, nor have the applicants' bona fides in commencing and prosecuting the proceeding under Pt IVA been challenged. In all the circumstances, although I have determined that the transfer is to be made under s 5(4)(b)(iii) of the CVA on the basis that it is in the interests of justice to do so, I have decided that the applicants ought to be given the opportunity to commence a Pt 4A proceeding before the transfer takes effect. Accordingly, I propose to make my order for transfer operative within 14 days, but if any or all of the applicants commence a related Pt 4A proceeding within that period, the transfer is to take effect upon the commencement of that proceeding. That order will ensure that there are not two proceedings for the same relief by the same parties in different courts. 17 The remaining issue relates to whether I should order that the applicants pay all costs thrown away or rendered nugatory as a result of the striking out of the s 52 claims. The applicants primary contention is that the s 52 costs should be costs in the cause or reserved to the trial judge because of the substantial overlap in the factual matrix of the negligence and the s 52 claims. Further, the applicants claim that, because of the overlapping factual matrix it is difficult to identify at this stage whether certain costs incurred in respect of the s 52 claims were additional to those that were required to be incurred in respect of the negligence claims. The applicants also contend that they could again apply to plead a s 52 claim (or its equivalent under State law) if, for example, the High Court is persuaded that the existence of such a claim (however formulated) has founded federal jurisdiction in the matter. Thus, so it is said, the additional costs incurred by the parties in respect of the s 52 claims to date may not have been wasted. 18 Esso contends that the s 52 claims have been struck out and leave to replead them has been refused. Thus, so it is said, the costs thrown away by reason of those claims should be paid forthwith by the applicants. 19 In my view Esso is entitled to be paid the taxed costs thrown away by reason of the applicants' s 52 claims. As that matter is also the subject of submissions by the parties to the Full Court, any order I make concerning such costs is to be subject to any order of the Full Court and is only to relate to s 52 costs that are not dealt with by orders of the Full Court. Further, my costs orders will not relate to any costs incurred in relation to the appeals as those costs will be dealt with by the Full Court. 20 I regard the possibility of a s 52 claim being resurrected by the applicants in some new form in the future as too remote to persuade me to depart from the usual costs orders that are appropriate at this stage. If any further s 52 claims (or their equivalent under State law) are relied upon by the applicants, the Supreme Court has power to make appropriate orders in relation to the costs incurred in this Court: see s 12 of the CVA. However, as there will be some overlap between costs incurred in respect of the s 52 claims and the negligence claims it is appropriate to confine my costs orders to the additional costs incurred by reason of the s 52 claims. 21 In all the circumstances it is appropriate that I order that, subject to any order of the Full Court, the applicants pay to Esso any additional taxed costs incurred by Esso, other than in relation to appeals, by reason of the applicants' s 52 claims. 22 A similar order is to be made against Esso in respect of the additional taxed costs incurred by the cross respondents, other than in relation to appeals, in respect of the s 52 claims raised in the cross claim that are now no longer proceeding, but only to the extent that such claims were raised on the basis of, or reflect, the s 52 claims of the applicants. If, and in so far as, there are other s 52 claims in the cross claim the costs of such claims can be dealt with by the Supreme Court. The applicants are to indemnify Esso in respect of the s 52 costs which Esso is required to pay to the cross respondents under these orders. 23 I do not regard it as appropriate to make the applicants pay the cross respondents' costs directly, nor do I regard it as appropriate that any interlocutory costs orders in respect of the claims or cross claims be paid forthwith. The circumstances of the present case do not warrant the usual course being departed from. In that regard the relevant considerations are that the bona fides of the various s 52 claims of the parties have not been challenged; the issues of fact and law raised by the causes of action the subject of the various proceedings are complex and inter-related; extensive interlocutory disputes were always inevitable; and although the legal basis for the s 52 claims may have been removed from the area of dispute, significant aspects of the factual basis for those claims remain in dispute. 24 I propose to direct that the applicants bring in agreed minutes of orders to give effect to these reasons for judgment within 14 days. In the event that any party is not in agreement, that party is at liberty to submit its own proposed orders within that period. 25 A number of procedural orders were sought by the parties. However, it appeared to be common ground that if I was disposed to transfer the matter to the Supreme Court it was appropriate that such matters be dealt with by that court rather than by myself. Accordingly, I have not dealt with those procedural matters. 26 In summary, I have decided to order that: · the proceedings in this matter be transferred to the Supreme Court of Victoria within 14 days of the date of my orders, but if any or all of the applicants commence a related Pt 4A proceeding in the Supreme Court within that period the transfer is to take effect upon the commencement of that proceeding; · subject to any order of the Full Court, the applicants pay Esso the additional taxed costs it incurred, other than in relation to appeals, by reason of the applicants' s 52 claims; · subject to any order of the Full Court, Esso pay the cross respondents the additional taxed costs they incurred, other than in relation to appeals, by reason of the s 52 claims in the cross claim that are based on or reflect the applicants' s 52 claims; · the applicants indemnify Esso in respect of the s 52 costs which Esso is required to pay to the cross respondents under these orders · save as set out above the taxed costs of all interlocutory steps taken by any party in this Court in these proceedings, other than steps taken in relation to appeals or steps that are subject to a specific costs order, be the party's costs in the cause and abide the outcome, on the merits, of the claims the subject of these proceedings; · the parties bring in minutes of orders to give effect to these reasons for judgment within 14 days. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 12 April 2001 Counsel for the applicants: Mr JWK Burnside QC with Mr H Borenstein and Ms RM Doyle Solicitors for the applicants: Slater and Gordon, Maurice Blackburn Cashman, Phillips Fox and Lander and Rogers Counsel for the Respondents: Mr JE Middleton QC and Mr DMB Derham QC with Mr PJ Booth and Mr GP Harris Solicitor for the Respondents: Middletons Moore & Bevins Counsel for the State Entities: Mr GAA Nettle QC and Mr JBR Beach QC with Mr SM Anderson Solicitor for the State Entities: Freehills Counsel for the State Entities on the issue of public interest immunity: Mr MA Robins Solicitor for the State Entities on the issue of public interest immunity: Victorian Government Solicitor Counsel for the 21st, 22nd and 23rd Cross-Respondents: Ms M Sloss Solicitor for the 21st, 22nd and 23rd Cross-Respondents: Arthur Robinson and Hedderwicks Counsel for the 15th and 24th respondents: Mr JC Santamaria QC with Mr CM Caleo Solicitor for the 15th and 24th respondents: Corrs Chambers Westgarth Counsel for the 25th to 27th Cross-Respondents: Mr CJ Connor Solicitor for the 25th to 27th Cross-Respondents: Baker and McKenzie Counsel for the State Entity Insurers: Mr A Probert Solicitor for the State Entity Insurers: Ebsworth and Ebsworth Counsel for BHP Petroleum (Bass Strait) Pty Ltd: Mr PD Crutchfield Solicitor for BHP Petroleum (Bass Strait) Pty Ltd: Mallesons Stephen Jaques Date of Hearing: 26 March 2001 Date of Judgment: 12 April 2001