Australian Bareboat Charters Pty Ltd v Taveator Pty Ltd
[1995] FCA 284
•19 Apr 1995
IN THE FEDERAL COURT OF AUSTRALIA )No. QG 45 of 1995
QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN: AUSTRALIAN BAREBOAT CHARTERS PTY. LTD.
(ACN 010 748 204)
Applicant
AND: TAVEATOR PTY. LTD.
(ACN 002 419 392)
Respondent
MINUTES OF ORDERS
JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 19 April, 1995
WHERE MADE: Brisbane
THE COURT GRANTS LEAVE for the applicant to amend the originating application to include:
Damages for breach by the respondent of a contract made between the applicant and the respondent in the State of Queensland for the construction and supply of the said vessel.
Interest on such damages pursuant to the provisions of Common Law Practice Act 1867 (Qld) (as amended).
THE COURT ORDERS THAT:
Pursuant to s. 5(4)(b) the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) the proceedings be transferred to the Supreme Court of Queensland.
Costs of the proceedings on 31 March, 1995 and 19 April, 1995 be costs in the proceedings.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 45 of 1995
QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN: AUSTRALIAN BAREBOAT CHARTERS PTY. LTD.
(ACN 010 748 204)
Applicant
AND: TAVEATOR PTY. LTD.
(ACN 002 419 392)
Respondent
Coram: Drummond J
Date: 19 April, 1995
Place: Brisbane
REASONS FOR JUDGMENT
These proceedings were commenced on 30 March, 1995. By its originating application, the only relief which the applicant, a Queensland resident company, sought was an order for the delivery up of a certain vessel. The vessel, at all relevant times, has been located in the State of New South Wales. When it commenced the proceedings, the applicant also applied for an order, ex parte, for the preservation of the vessel. Notice of this application was given to the respondent by the Court.
On the first occasion that the matter came before the Court on 31 March, 1995 not only the respondent, a New South Wales resident company, but also one of its principals, Mr. Ditter, gave undertakings expressed to endure until further order which, as Mr. Daubney, counsel for the applicant, has acknowledged in argument today, was sufficient to put at rest the applicant's concerns about the safety of the vessel. On that occasion Cooper J gave further directions, designed to deal with the progress of the action but without prejudice to the entitlement of the respondent to raise any question of jurisdiction.
The application for the interim preservation order has not been served. In the proceedings before me today, the applicant sought different relief, in effect, final relief in the form of delivery up of the vessel, but conditional upon it paying into court the sum of $8000, an amount demanded by the respondent. The respondent, through its counsel, however, indicated, although not in any clear way, that the respondent wished to consider raising other claims additional to the demand for the money payment.
Mr. Daubney made it clear in his submissions that the only basis upon which the proceedings were brought in this Court, so far as the question of jurisdiction is concerned, was in reliance upon the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). He has, however, sought and obtained, without objection from the respondent, leave to amend his originating application to claim damages for breach by the respondent of a contract made between the applicant and the respondent in the State of Queensland for the construction and supply of the vessel referred to in the originating application, and for interest on such damages pursuant to the provisions of the Common Law Practice Act 1867 (Qld).
Prior to the making of these amendments, it seems to me quite plain that it was the Supreme Court of New South Wales which had jurisdiction to grant the only relief which the applicant was then seeking. It is now, of course, within the jurisdiction of the Supreme Court of Queensland to deal with the matter, given the amendments that have been made to the originating application.
The respondent, taking up the reservation allowed it by Cooper J, objected to the matter proceeding in this Court and submitted that the matter should be transferred to the appropriate Supreme Court. After some discussion, the respondent indicated it had no objection to the matter being transferred to the Supreme Court of Queensland and it was against that background that the amendments I have referred to were sought by the applicant and made. The convenience of both parties appears to be served by the matter proceeding in the Supreme Court of Queensland rather than the Supreme Court of New South Wales.
Having regard to the provisions of s. 5(4)(b) the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), it seems to me that this is a clear case in which the matter should be transferred to the Supreme Court of Queensland. Apart from the provisions of the cross-vesting legislation, this Court has no jurisdiction in the matter. The decision by the applicant to proceed in this Court rather than in the Supreme Court of New South Wales was taken for reasons that justify the applicant's action being described as forum shopping, something inconsistent with the objects of the cross-vesting legislation. See Bankinvest AG v Seabrook (1988) 14 N.S.W.L.R. 711 at 714-715 and 724-725. The case does raise a question of the operation of a Queensland statute, viz., the Common Law Practice Act 1867 (Qld), and it seems to me that the interests of justice are best served by the matter being transferred to the Supreme Court of Queensland. I will therefore order that, pursuant to s. 5(4)(b) the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), the proceedings shall be transferred to the Supreme Court of Queensland.
It seems to me that, having regard to the somewhat irregular course the proceedings took, it is inappropriate to give the respondent the costs of the proceedings on 31 March, 1995. The applicant intended the application to be an ex parte one. The Court, without notifying the applicant, gave notice of the proceedings to the respondent. This resulted in the respondent's attendance on 31 March, 1995. If the matter had proceeded in the ordinary course and ex parte relief had been refused, the applicant would then have had an opportunity to decide whether or not to pursue its claim for ex parte relief, a claim which in effect it did not proceed with, no doubt largely because undertakings were given. I will therefore reject the respondent's application for costs of that day and order that the costs of 31 March, 1995 be costs in the proceedings.
So far as the costs of today are concerned, it is not disputed that it was not until this morning that the respondent made application for the transfer of the proceedings to an appropriate Supreme Court. The background to this particular topic is evidenced in the correspondence exhibited to Mr. Hawley's affidavit. When the matter came before Cooper J on 31 March, 1995, counsel for the respondent "took objection" to the Federal Court having jurisdiction to hear and determine the matter. The solicitors for the applicant took up that matter in their letter of 5 April, 1995 to the solicitors for the respondent and asked them for an indication as to whether they maintained objection to jurisdiction and as to what was the basis for that objection. No reply was received immediately to that request and on 6 April, 1995, the next day, the solicitors for the applicant pressed for a reply. On the same day, 6 April, 1995, the solicitors for the respondent took up the matter of jurisdiction in these terms:
"Our clients instructions are not to respond as to the issue of jurisdiction however to place the following matters before your client for instructions."
The matters raised did not touch upon the question of jurisdiction. As is apparent from the applicant's
solicitors' letter of 7 April, 1995, notwithstanding the form of the respondent's response concerning jurisdiction, the applicant's solicitors proceeded on the basis of an understanding that the respondent was still disputing the jurisdiction of the Federal Court to determine the application. Matters proceeded, correspondence being exchanged, but nothing further came from the respondent to indicate what its attitude was to jurisdiction. In the proceedings before me today, the respondent indicated that it objected to the matter proceeding in this Court and submitted it should be transferred, as I have indicated.
It seems to me that given the attitude taken by the respondent not to make clear what its position was in relation to the proceedings remaining in this Court until this morning, it is inappropriate to give the respondent the costs of today's hearing. I will therefore make the costs of today costs in the proceedings also.
I certify that this and the preceding
five pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.
Associate:
Date: 19 April, 1995
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