New South Wales Supreme Court CITATION : AMP Crossroads Pty Ltd v Homewares Depot Pty Ltd [2009] NSWSC 751 HEARING DATE(S) : 28/07/09 JUDGMENT DATE : 28 July 2009 JURISDICTION : Equity Division JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 28 July 2009 DECISION : Plaintiff's strike-out motion should be addressed before the application of the first and second defendants for cross-vesting of the proceedings to the Federal Court. CATCHWORDS : PROCEDURE - cross-vesting - "special federal matter" - cross-claim makes claims based on s 45 and s 46 of Trade Practices Act 1974 - plaintiff seeks order striking out relevant parts of cross-claim - strike out motion is before the court - whether the proceeding is at this point one in which a "special federal matter" is for determination - held that that question falls to be determined after close of pleadings only LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3, 6 Trade Practices Act 1974, Part IV, ss 45, 46 CATEGORY : Procedural and other rulings Computershare Ltd v Perpetual Registrars Ltd (No 3) [2000] VSC 286; (2000) 2 VR 666 Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 CASES CITED : Magenta Nominees Pty Ltd v Pridmore (unreported WASCA, 8 October 1998, Malcolm CJ, Murray and Parker JJ, BC9805209 Matland Holdings Pty Ltd v NTZ Pty Ltd [1999] VSC 333; (1999) 157 FLR 364 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154 AMP Crossroads Pty Limited - Plaintiff PARTIES : Homewares Depot Pty Limited - First Defendant Craig Robert Kelly - Second Defendant Philip John Kelly - Third Defendant FILE NUMBER(S) : SC 6321/08 COUNSEL : Mr A R Vincent - Plaintiff Second Defendant in Person SOLICITORS : Deacons - Plaintiff Second Defendant in Person IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J TUESDAY 28 JULY 2009 6321/08 - AMP CROSSROADS PTY LTD v HOMEWARES DEPOT PTY LTD & ORS JUDGMENT 1 I have two notices of motion before me. I have to decide which of them should be determined first. 2 One is a motion by the plaintiff seeking to strike out part of the second amended statement of defence filed by the first and second defendants on 30 June 2009 (which I shall call simply "the defence") and to strike out either in whole or as to large parts the first and second defendants' cross-claim filed on 3 July 2009. 3 The part of the defence attacked by the plaintiff and a very significant section of the cross-claim that the plaintiff says should be struck out advance allegations based on Part IV of the Trade Practices Act 1974 (Cth). The relevant section of the cross-claim alleges conduct on the part of the plaintiff in contravention of s 46 of the Trade Practices Act concerning, in broad substance, alleged abuse of dominant market power. Section 45 is also invoked, although in a way that leaves obscure the nature of and basis for the claim attempted to be advanced. 4 This leads to the second motion which is a motion by the first and second defendants for an order cross-vesting the proceedings to the Federal Court of Australia. The first and second defendants contend that, because their cross-claim, as now filed, advances claims referring to s 45 and s 46 of the Trade Practices Act, cross-vesting is compelled by s 6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 5 Section 6(1) is in these terms: "If: (a) a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and (b) the court does not make an order under subsection (3) in respect of the matter; the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b). Note: This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States)." 6 Section 6(1) is subject to s 6(3): "The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties." 7 Section 6(4) requires the court to be satisfied as to certain matters before it makes an order under s 6(3). 8 Section 3 defines "special federal matter". One species of "matter" included in the definition is "a matter arising under Part IV of the Trade Practices Act 1974 (other than under section 45D, 45DA, 45DB, 45E or 45EA)". It follows that a "matter arising under" s 45 or s 46 is a "special federal matter". 9 The question central to the cross-vesting application brought by the first and second defendants is whether, in this present proceeding (which I am satisfied is "pending in" this court), there is, at this particular point, any "matter for determination" that is a "special federal matter". 10 Once pleadings have closed and issue has been joined, there will be a number of "matters for determination in" this proceeding. That point has not yet been reached with respect to any matter raised in the cross-claim filed on 30 June 2009. But the question now before me as to whether parts of the defence and cross-claim should be struck out is also, as I see it, a "matter for determination in" this proceeding. It is a matter requiring interlocutory determination. 11 In an immediate sense, therefore, the question posed by the definition of "special federal matter" is whether the "matter" of striking out or not striking out the sections of the defence and cross-claim based on s 45 and s 46 of the Trade Practices Act is itself "a matter arising under" Part IV of that Act. 12 A matter will properly be regarded as "arising under" Part IV if the right or duty in question in the matter owes its existence to a Part IV provision or depends on Part IV for its enforcement. This is the meaning of "arising under" stated by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154. A matter does not "arise under" a particular law just because it involves the interpretation of that law: Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367. 13 At this interlocutory stage, there is not before the court for determination a claim to vindicate a right or enforce a duty arising from Part IV of the Trade Practices Act. That point will be reached, if it ever is, when issue is joined and pleaded Part IV claims are ready to go to trial. 14 At present, the only question is whether the articulated claims are fairly arguable so as to warrant retention in the cross-claim or, as the plaintiff contends, whether no reasonable cause of action is shown. That, while obviously involving the interpretation of Part IV, does not mean that the court is required to determine a claim to vindicate a right or enforce a duty sourced in Part IV. 15 I am of the opinion that the strike-out motion attacking the Part IV aspects of the defence and cross-claim does not cause this proceeding to be, at this point, one in which a "special federal matter" is a matter for determination. The correct approach to s 6 of the Commonwealth Jurisdiction of Courts (Cross-Vesting) Act is, in my opinion, to assess the proceeding as it stands when issue is joined and the various claims are fully and finally articulated. I accept Mr Vincent's submissions in these respects. 16 That, in any event, appears to have been the approach taken by Warren J in both Matland Holdings Pty Ltd v NTZ Pty Ltd [1999] VSC 333; (1999) 157 FLR 364 and Computershare Ltd v Perpetual Registrars Ltd (No 3) [2000] VSC 286; (2000) 2 VR 666. It is certainly the approach taken by the Full Court of the Supreme Court in Western Australia in Magenta Nominees Pty Ltd v Pridmore (unreported WASCA, 8 October 1998, Malcolm CJ, Murray and Parker JJ, BC9805209): "It is for the trial Judge, who will have to make whatever orders and directions are necessary to tidy up the pleadings in this matter and then having determined what are the pleaded cases on which it is intended to go to trial, to determine whether , on those pleadings in their final form , there is within these proceedings a matter for determination that is 'a special federal matter' for the purposes of s6(1) of the CVA." [emphasis added] 17 My decision therefore is that the plaintiff's strike-out motion should be addressed before the application of the first and second defendants for cross-vesting of the proceedings to the Federal Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.