Anagnostis and Styl v Davies Brothers Limited
[1989] TASSC 46
•12 September 1989
Serial No 43/1989
List "A"
CITATION: Anagnostis and Styl v Davies Brothers Limited [1989] TASSC 46; A43/1989
PARTIES: ANAGNOSTIS, John
STYL, Con
V
DAVIES BROTHERS LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1013/1986
DELIVERED ON: 12 September 1989
JUDGMENT OF: Underwood J
Judgment Number: A43/1989
Number of paragraphs: 15
Serial No 43/1989
File No 1031/1986
JOHN ANAGNOSTIS and CON STYL v DAVIES BROTHERS LIMITED
REASONS FOR JUDGMENT UNDERWOOD J
12 September 1989
This application is brought pursuant to the Jurisdiction of Courts (Cross–vesting) Act 1987 s5(1), for an order that action No 103186 (the relevant proceedings) pending in this Court, be transferred to the Federal Court.
The following is a chronology of relevant events.
1On 6 August 1986 John Anagnostis and Con Styl (the applicants) commenced the relevant proceedings by the issue of a writ against Davies Brothers Limited (the respondent).
2The principal allegations in the statement of claim (as amended) are in substance that:
(a)The applicants were and are the owners of premises known as the "Midway Point Supermarket".
(b)The defendant was and is (inter alia) the distributor of the Mercury newspaper and associated publications.
(c)In about September 1971, the applicants and the respondent entered into an agreement for the sale and distribution of the Mercury newspaper and associated publications by the applicants from the Midway Point Supermarket (hereafter referred to as "the franchise agreement").
(d)It was a term of the franchise agreement that it could be terminated by the respondent only in the event of the applicants being in breach of a term thereof or alternatively on reasonable notice.
(e)In July 1978 the applicants, (I infer from other pleadings referred to later, together with the other two owners of the Midway Point Supermarket, the applicants' wives) leased the Midway Point Supermarket and, "leased" the franchise agreement to Jim and Maria Kessarious (hereafter together called "Kessarious").
(f)By an agreement made on the 19 July 1978 the defendant agreed that the franchise agreement "would be retained in the names of the [applicants] and that the applicants would guarantee payment of Mercury accounts rendered by the defendant to Kessarious".
(g)Alternatively, the defendant engaged in misleading or deceptive conduct with respect to "the newsagency franchise" contrary to the Trade Practices Act, s52(1).
(h)Alternatively, the defendant made false or misleading representations concerning a condition, warranty and/or guarantee with respect to the franchise agreement contrary to the Trade Practices Act, s53(g).
(i)Kessarious conducted the business of a newsagency at the Midway Point Supermarket until the 31 July 1986.
(j)On and since 1 August 1986 Kessarious conducted the business of a newsagency at 13 Tasman Highway, Midway Point.
(k)On and since the 1 August 1986, in breach of the franchise agreement and the agreement made on 19 July 1978, the defendant stopped supplying the Mercury newspaper and associated publications to the applicants and supplied them instead to Kessarious at 13 Tasman Highway.
(l)By reason of the breaches of contract and the Trade Practices Act the applicants have lost the value of the franchise agreement and have lost and will continue to lose profits.
(m)The applicants claim $254,735.94 for the loss of the market value of the franchise agreement and $291,979.63 for loss of profits.
3By the amended defence, in substance, the respondent admits that it entered into an agreement with the applicants which the applicants describe in the statement of claim as a franchise agreement and that since the 1 August 1986 it has supplied the Mercury newspaper and associated publications to Kessarious at 13 Tasman Highway but joins issue with the other allegations in the statement of claim.
4On the 10 September 1987 the applicants applied to amend the statement of claim. The application was in part successful and the amendments allowed are referred to in paragraph 2 above. The application included an application to add the applicants' wives as plaintiffs, Kessarious as defendants, and to allege the commission of the tort of conspiracy between all the defendants to defraud and injure the applicants in their business of a newsagency. This part of the application was refused by order dated the 5 November 1987.
5No appeal was lodged against that part of the order which refused the application to add the applicants' wives as plaintiffs, Kessarious as defendants and to allege the commission of the tort of conspiracy.
6On the 21 March 1989 the applicants applied to further amend the statement of claim to plead breaches of the Trade Practices Act which are referred to in paragraphs 2(g) and (h) (supra). By consent it was ordered that the amendments be made.
7In order to gain access to material to support the claim for damages for loss of profits, on the 18 April 1989 the applicants applied, pursuant to O56, r4, for detention and inspection of certain business documents belonging to Kessarious who were not parties to the relevant proceedings.
8On the 19 May 1989 the Master declined to make the order sought on the basis that the range of documents the detention and inspection of which was sought was too wide. The Master gave the applicants leave to amend the application to limit the number of documents in respect of which detention and inspection was sought.
9The amended application came on for hearing. It was confined to Kessarious' income tax returns, balance sheets, profit and loss statements and details of daily takings and expenses for specified periods.
10On the 19 July 1989 the Master dismissed the amended application. No appeal against the order of dismissal was lodged.
11During the period between the institution of proceedings and the 19 July 1989 the parties demanded and delivered various particulars and made discovery.
12On the 21 July 1989 the defendant, being anxious to have this litigation concluded, sought a directions hearing pursuant to O32A, r8 claiming that the applicants were delaying the prosecution of the relevant proceedings and that the action had reached the stage where a certificate of readiness could be filed and the action listed for trial. This application was listed for hearing on the 31 July 1989.
13Five days after that application was filed, the 26 July 1989, proceedings were commenced in the Federal Court. The "plaintiffs" were the applicants and their wives. "The defendants" were the respondent and Kessarious. In substance, the statement of claim repeats all the allegations made in the statement of claim in the relevant proceedings and includes a further claim for damages for the tort of conspiracy, this being the allegation the applicants had previously unsuccessfully sought to add to the relevant proceedings.
14On the 31 July 1989 the present application to transfer the relevant proceedings to the Federal Court was filed. The directions hearing listed for hearing on the same day was adjourned to enable argument to be presented on the present application.
The applicants' complaint in essence, is that in order to establish their claim for loss of profits in the relevant proceedings they need access to Kessarious' books of account as they have been conducting the disputed newsagency business at their new address since the 1 August 1986. By orders of this court they have been denied such access as Kessarious are not parties to the relevant proceedings and an application for an order for inspection and preservation of their business records has been refused. Kessarious are parties to the proceedings in the Federal Court and consequently in those proceedings will be obliged to discover their business records. Further, the provisions of the Federal Court Rules O15A, r8 relating to the discovery of documents from a person not a party to the proceedings, are considerably wider than the Rules of Court O56, r4. I do not think I do the argument of the applicants any injustice if I summarise it in the following way:
1There are proceedings pending in both courts and the relevant proceedings are related to the Federal Court proceeding.
2.Although the proceedings in the Federal Court are between four "plaintiffs" and three "defendants" two of those plaintiffs and one of those defendants are also parties to the relevant proceedings.
3Apart from a claim for damages for conspiracy, raised in the Federal Court proceedings, the causes of action in both proceedings are identical.
4Central to an assessment of damages in both proceedings will be a calculation of loss of profits and this cannot be done without discovery and inspection of Kessarious' business records.
5Such discovery and inspection cannot be achieved in the relevant proceedings but can be achieved in the Federal Court proceedings and is likely to be achieved in the relevant proceedings if they are transferred to the Federal Court.
6Determination of the Federal Court proceedings will determine all subsisting causes of action between all parties.
7By reason of the foregoing it is more appropriate that the relevant proceedings be determined by the Federal Court and otherwise in the interests of justice that the relevant proceedings be so determined.
The applicants rely on the provisions of the Jurisdiction of Courts (Cross–vesting) Act 1987 s5(1) which provides:–
"5–(1) Where –
(a)a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court; and
(b) it appears to the Supreme Court that –
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court;
(ii)having regard to –
(A)whether, in the opinion of the Supreme Court, apart from this Act and any law of the Commonwealth or another State relating to cross–vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation, or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross–vesting of jurisdiction; and
(C)the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."
It is to be noted that, unlike the position which prevails in relation to cases falling within para (i) of s5(1)(b) (a related proceeding pending in the Federal Court or Family Court) cases falling within paras (ii) and (iii) require the court to consider "the interests of justice". This expression has already been the subject of judicial comment.
Speaking generally with respect to the cross–vesting legislation Street CJ said in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 at p714:–
"As a very broad generality it can be said that the ordinary day to day administration of the cross–vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be in which they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative re–direction of the proceedings to the other court selected. In the hands of that other court the proceedings will continue to attract the Australiawide jurisdiction and law which would have been exercisable and applicable by the court from which they were transferred.
Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross–vesting scheme is not encumbered by an encrustation of judge–made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute."
In the same case Kirby P said at p716:–
"The more general the expression of the criteria for the exercise of a statutory discretion, the more natural is it for courts to endeavour to provide elaboration and guidance for the future. Yet the more general is the expression of the criteria, the more difficult it may be to give that guidance without frustrating the legislative objective of an individualised decision in each case. Often that discretion may invite an ultimate judgment which is little more than one of impression reached after reference to the relevant considerations."
Rogers A–JA held that no onus was cast on any party to show some positive basis for making the order of transfer and said at p727:–
"The only lodestar that a judge may steer by is, what do the interests of justice dictate should be done?"
His Honour said at p730 that the relevant matters and considerations are essentially the same as those specified in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and at p728 the following passage from Spiliada was cited:–
"... a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice." [emphasis added]
The same approach to the expression "interests of justice" was taken by Wilcox J in Bourke & Ors v State Bank of New South Wales (1988) 85 ALR 61. His Honour said at p77:–
"Finally, in connection with this sub–paragraph the court must consider 'the interests of justice'. In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in 'the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation."
In the present case it seems clear that, had the applicants' attempt to join additional parties and to plead the tort of conspiracy been successful, the proceedings in the Federal Court would not have been instituted nor this application for transfer made. In his reasons for refusing that application Cox J said at pp2–3 of his reasons for judgment (B49/87):–
"To grant the amendments which seek to rely on a separate cause of action in tort and which necessitate the joinder of two further defendants must cause a substantial delay in getting the matter to trial. The new parties may wish to be separately represented and a great many interlocutory steps will have to be duplicated. Refusal of the relief sought will not debar the plaintiffs from seeking a remedy against the defendant and the two proposed additional defendants in other proceedings......................
In my opinion it would be prejudicial to the defendant and unjust to allow such amendments to be made at this stage."
His Honour's comments concerning delay and duplication are relevant considerations on this application upon a consideration of the interests of justice. In Re Monadelphous Engineering Associates (NZ) Ltd (In Liquidation)ex parte McDonald and Watson (1989) 7 ACLC 220 Northrop J said at p225:–
"Secondly, in my opinion, the question of which court can grant the more speedy hearing is not really a matter to be taken into account in the interests of justice as used in the cross–vesting legislation. This is not to dispute that in some exceptional cases there may well be a matter requiring a very speedy hearing where the interests of justice can be used as a basis for not referring the matter to a Supreme Court, but in my opinion this is not such a case."
I do not understand his Honour to be saying, as was submitted by counsel for the applicants, that delay in achieving a hearing date is never a relevant consideration when considering the interests of justice under s5(1) of the Act. Such a proposition is not apparent from the terms in which the statute confers the discretion upon the courts. The Monadelphous case was quite different from the present matter in that here, the relevant proceedings have been pending since 1986 and have progressed to the stage, after several lengthy interlocutory hearings, where a certificate of readiness can be filed and the action listed for hearing. The related proceeding in the Federal Court was not commenced until the 26 July 1989 and has not progressed past the initial stage. In view of the provisions of the Jurisdiction of Courts (Cross–vesting) Act s11(1) it is by no means certain, if the relevant proceedings are transferred to the Federal Court, that that court would order discovery of Kessarious' documents in those proceedings. Further, as all the issues raised in the relevant proceedings are pleaded in the related proceeding it is quite likely that if the order sought is made, the Federal Court will order a stay of the relevant proceedings and permit the related proceedings to continue. Such a likelihood makes it inappropriate that the relevant proceedings be determined in the Federal Court having regard to the fact that those proceedings have reached the stage in this Court when a certificate can be filed and the matter listed for hearing. The present listings procedure is such that the action can be heard in this Court in a very short space of time.
The Supreme Court has jurisdiction, apart from the cross–vesting legislation, to determine all subsisting causes of action between the parties. The applicants invoked this jurisdiction three years ago and, until the 26 July 1989, accepted this jurisdiction as the appropriate forum for determination of the matters in dispute. The application is, in essence, an attempt to obtain the pre–trial orders already refused by this Court. The applicants failed, without resort to the appeal process and for reasons not related to jurisdictional difficulties, in a bid to add a new cause of action and to obtain certain orders for inspection and preservation of documents in the relevant proceedings. This application is, in effect, an attempt to use the cross–vesting legislation to recommence the litigation in a jurisdiction which, in the applicant's view, is likely to provide them with the interlocutory orders which this Court has refused to make. In my opinion it is neither appropriate nor in the interests of justice to permit the applicants to use the provisions of the cross–vesting legislation to overcome a failure to achieve their pre–trial objectives by interlocutory litigation and cause duplication of work and delay in the disposition of litigation which has been pending in this Court for three years and is now ready to be listed for trial.
The application is refused.
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