Austwide v David John Cranstoun

[1999] FCA 1239

FEDERAL COURT OF AUSTRALIA

Austwide v David John Cranstoun [1999] FCA 1239

AUSTWIDE WHOLESALERS PTY LTD v DAVID JOHN CRANSTOUN AND JOHN FEDDEMA

W 3007 of 1999

DOWSETT J
3 SEPTEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	W 3007 OF 1999

BETWEEN:	AUSTWIDE WHOLESALERS PTY LTD Applicant
AND:	DAVID JOHN CRANSTOUN AND JOHN FEDDEMA Respondents
JUDGE:	DOWSETT J
DATE OF ORDER:	3 SEPTEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The Federal Court is without jurisdiction in this matter;

2.        There be no order as to costs.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	W 3007 OF 1999

BETWEEN:	AUSTWIDE WHOLESALERS PTY LTD Applicant
AND:	DAVID JOHN CRANSTOUN AND JOHN FEDDEMA Respondents

JUDGE:	DOWSETT J
DATE:	3 SEPTEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I am of the view that the Federal Court is without jurisdiction in this matter.

2. As to the question of costs, the solicitor for the respondents has submitted that they should have the costs of appearances in this Court which have been necessitated solely by the fact that it has become obvious that the Court could not deal with the matter because of the decision in ReWakim Ex parte McNally (1999) 73 ALJR 839. He submits that the case was never appropriate for the Federal Court because it was not properly a claim under the Corporations Law, but at common law. In either case, it was not a case which could have been brought in the Federal Court in light of the decision in Wakim.

3. In my view, the better outcome will be that the costs incurred to date follow the event as whatever costs have been thrown away have been thrown away largely as a result of the widespread misunderstanding as to the validity of the cross-vesting legislation which has been demonstrated by the High Court in Wakim.  As I understand it, if I make no order as to costs, then the costs incurred to date will have been incurred in the action and will therefore be able to be disposed of by an order of the Supreme Court or in any other Court which assumes jurisdiction in the matter.

4. In those circumstances, it appears appropriate to make no order as to costs.  Having found that there is no jurisdiction, I make no order as to the costs of the proceedings, and I dismiss the application.

5. I record that my dismissal of the application is upon the basis that it is a proceeding relating to a state matter within the meaning of the definition of “relevant order” in the Federal Courts (State Jurisdiction) Act 1999 (Qld).

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett .

Associate:

Dated:             3 September 1999

Solicitor for the Applicant:	McCullough Robertson
Solicitor for the Respondent:	Bennett & Philp
Date of Hearing:	3 September 1999
Date of Judgment:	3 September 1999