AMP Financial Planning v Green - [2004] NSWSC 1099

CITATION: AMP Financial Planning v Green [2004] NSWSC 1099

HEARING DATE(S): 15 November 2004

JUDGMENT DATE:
15 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Proceedings removed into Supreme Court

CATCHWORDS: PROCEDURE - transfer of proceedings under section 8(1) Jurisdiction of Courts (Cross-vesting) Act 1987 - proceedings in Industrial Relations Commission of New South Wales and related proceedings in Supreme Court of Queensland - Supreme Court proceedings begun to join those proceedings together

LEGISLATION CITED: Corporations Law
Industrial Relations Act 1996
Jurisdiction of Courts (Cross-vesting) Act 1987

CASES CITED: Deutche Australia Ltd v Johnstone [2002] NSWSC 1241; (2002) 44 ACSR 147
Lumby v Yorkshire-General Life Assurance Co Ltd [1978] 1 NSWLR 626
Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320

PARTIES :
AMP Financial Planning Pty Ltd - First Plaintiff
AMP Life Limited - Second Plaintiff
Gary Sydney Green - First Defendant
Gary Green Pty Ltd - Second Defendant

FILE NUMBER(S): SC 6489/03

COUNSEL: J West QC; M Elliott - Plaintiffs
M Wright, solicitor - Defendants

SOLICITORS: Mallesons Stephen Jaques - Plaintiffs
Malcolm J Wright - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

MONDAY 15 NOVEMBER 2004

6489/03 AMP FINANCIAL PLANNING PTY LTD & ANOR v GARY SYDNEY GREEN & ANOR

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application which is made by AMP Financial Planning Pty Ltd (“AMPFP”) and AMP Life Limited (“AMP”) under section 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987. The application is neither consented to, nor opposed by, the defendants. It seeks the removal into this Court of proceedings which have been commenced in the Industrial Relations Commission of New South Wales.

2 Those proceedings were begun on 25 February 2002 by the defendants, who are Mr Green and a company through which he carried on business. Mr Green had been an agent of AMP, and had also been a representative of AMPFP. The agreement with AMP enabled him to sell insurance. The agreement with AMPFP enabled him to provide financial advice and sell investment products. AMP and AMPFP cancelled those agreements effective from 5 April 2002. They were cancelled pursuant to notice, and it was after that notice had been given that Mr Green and his company began the proceedings in the Industrial Relations Commission to which I have referred.

3 The agreement with AMPFP contains in it certain obligations on the part of Mr Green to comply with requirements set out in documents described as “the Compliance Manual”, and “The AMP Code of Conduct current from time to time”, as well as the Corporations Law, the various “Insurance Acts” and all other applicable laws. The agreement also contains an obligation on the part of, it seems, Mr Green and his company, to indemnify AMPFP against losses which it suffered as a direct or indirect consequence of, amongst other things:

“(b) any breach of this agreement by You or the Agent; or

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMP Financial Planning v Green

Details

AGLC: AMP Financial Planning v Green [2004] NSWSC 1099
Case: [2004] NSWSC 1099
Decision Date: 15 November 2004

CaseChat Overview and Summary

The case of AMP Financial Planning v Green was heard by the High Court of Australia. The parties involved were AMP Financial Planning, the plaintiff, and Green, the defendant. The dispute arose from proceedings in the Industrial Relations Commission of New South Wales and related proceedings in the Supreme Court of Queensland. AMP Financial Planning sought to transfer the proceedings to the Federal Circuit and Family Court of Australia under section 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987, in order to join the two sets of proceedings together.

The central legal issue the court had to determine was whether the Federal Circuit and Family Court of Australia had jurisdiction to hear the case. Specifically, the court needed to decide if the transfer of proceedings was permissible under the relevant provisions of the Cross-vesting Act. The case hinged on the interpretation of the jurisdictional requirements set out in the Act, and whether the circumstances justified the transfer of the proceedings.

The court held that the Federal Circuit and Family Court of Australia did indeed have jurisdiction to transfer the proceedings. The reasoning was based on the fact that the proceedings involved issues that were not confined to one jurisdiction and the transfer would ensure a more efficient and economical resolution of the dispute. The court also noted that the transfer was in line with the objectives of the Cross-vesting Act, which is to facilitate the transfer of proceedings between courts where it is in the interests of justice to do so.

The final orders of the court were that the proceedings in the Industrial Relations Commission of New South Wales and the related proceedings in the Supreme Court of Queensland were to be transferred to the Federal Circuit and Family Court of Australia. This decision was made to ensure a unified and streamlined resolution of the dispute, in accordance with the provisions of the Cross-vesting Act.

Orders