BATES v SAGE
[2005] FMCA 1133
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BATES & ANOR v SAGE & ANOR | [2005] FMCA 1133 |
| TRADE PRACTICES – Jurisdiction – transfer of proceedings to the Federal Court of Australia – amendment to statement of claim to disclose a cause of action – jurisdiction of the Federal Magistrates Court – costs. |
| Australian Securities and Investments Commission Act 2001 (Cth), s.12GJ Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 1976 (Cth) Federal Magistrates Court Act 1999 (Cth), ss.18, 39 Federal Magistrates Court Rules 2001 (Cth), r.1.03 Trade Practices Act 1975 (Cth) Fair Trading Act 1999 (Vic ) |
| Applicant: | N. BATES & ANOR |
| Respondent: | J. SAGE & ANOR |
| File Number: | MLG1410 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 8 August 2005 |
| Date of Last Submission: | 8 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 12 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Fary |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the First Respondent: | No Appearance |
| Solicitors for the First Respondent: | No Appearance |
| Counsel for the Second Respondent: | Mr C. Furnell |
| Solicitors for the Second Respondent: | Collins House Legal |
| Counsel for the Third Respondent: | Mr M. Campbell |
| Solicitors for the Third Respondent: | Mr C. Vatmanidis |
ORDERS
The applicant’s application for leave to amend the statement of claim in accordance with the revised amended statement of claim be reserved to the Federal Court of Australia.
That pursuant to section 39 of the Federal Magistrates Court Act 1999 (Cth), the proceedings be transferred to the Federal Court of Australia.
That the applicant pay the second and third named respondents’ costs thrown away each fixed in the sum of $4,560.
That the payment of the costs referred to in paragraph 3 hereof be stayed for a period of 30 days.
That all other costs be reserved to the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1410 OF 2004
| N. BATES & ANOR |
Applicant
And
| J. SAGE & ANOR |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are ex tempore reasons arising from a determination made by me on 8 August 2005 with respect to the application filed on 7 July 2005 and returnable on 27 July 2005. The initial application sought to leave to file and serve an amended state of claim in accordance with the document exhibited as “CP-1” to the affidavit of Cesar Piotti sworn on 6 July 2005. It also sought a transfer of the proceedings to the Federal Court of Australia. The application was supported by an affidavit of Cesar Piotti, sworn 6 July 2005 and filed on 7 July 2005.
The first named respondent did not appear on the first return date. The second named respondent filed a response on 25 July 2005, seeking an order dismissing the application or transferring the matter to the Federal Court but otherwise dismissing the applications. It also sought costs.
The third named respondent filed an affidavit on 26 July 2005 in which it was indicated that the third named respondent had no objection to the filing of the amended statement of claim and the transfer of the proceedings but it did not want an order for costs thrown away on an indemnity basis.
When the matter commenced the parties agreed to the vacation of the trial date of 8 August 2005. The applicant’s position, in summary, was that the amendments to the statement of claim were necessary to enable the applicant to prosecute a claim on similar grounds pursuant to the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) and/or the Corporations Act 2001 (Cth) as well as the Trade Practices Act 1975 (Cth) (“the TPA Act”). The second named respondent opposed the amendment alleging that the amended statement of claim did not disclose a cause of action under any of that legislation.
There was an insufficiency of time to determine that issue on the first return date and the matter was adjourned to 8 August 2005. The trial date was vacated by agreement and the costs of the respondents were reserved. In my view it was not appropriate to consider the issue of a transfer until it was clear that the applicant was pursuing a valid cause of action pursuant to the ASIC Act under which this Court has no jurisdiction.
When the matter commenced before me this day, the applicant sought leave to file and rely on a revised amended statement of claim, which was annexed to the affidavit of Cesar Piotti, in lieu of the amended statement of claim. The parties had also filed additional affidavits:
a)affidavit of Cesar Piotti, sworn and filed on 5 August 2005;
b)affdaivit of Amanda Di Pilla, sworn and filed on 5 August 2005;
c)affidavit of Angela Minieri, sworn and filed on 25 July 2005; and
d)affidavit of Angela Minieri, sworn 5 August 2005.
I am satisfied that the alleged facts contained in the revised amended statement of claim are capable of supporting a cause of action pursuant to the ASIC ACT. In determining that issue, I take into account that the Federal Magistrates Court Rules 2001 (Cth) provide:
1.03 Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
·to operate as informally as possible
·to use streamlined processes
·to encourage the use of appropriate dispute resolution procedures
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
·avoid undue delay, expense and technicality
·consider options for primary dispute resolution as early as possible
(5) If appropriate, the Court will help to implement primary dispute resolution
I make no findings as to the adequacy of the revised amended statement of claim with respect to the Federal Court’s requirements with regard to pleadings. It does seem to me, however, that in the context of the less formal requirements of this Court, sufficient factual matters have been pleaded with respect to the alleged breaches of the various statutory provisions of the TPA Act, the ASIC Act, the Corporations Act and the Fair Trading Act 1999 (Vic), and with respect to the consequent damages, to enable the respondents to be aware of the case that is put against them, albeit that there may be the need for some greater particularity and clarification even if the matter were to proceed in this Court.
The relevant provisions with respect to an application for transfer of a matter to the Federal Court from the Federal Magistrates Court are contained in section 39 of the Federal Magistrates Court Act 1999 (Cth), which provides as follows:
39 Discretionary transfer of proceedings to the Federal Court or the Family Court
(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.
(2) The Federal Magistrates Court may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection
40(2); and
(b) whether proceedings in respect of an associated matter are
pending in the Federal Court; and
(c) whether the resources of the Federal Magistrates Court are
sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection
40(4); and
(b) whether proceedings in respect of an associated matter are
pending in the Family Court; and
(c) whether the resources of the Federal Magistrates Court are
sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5) If an order is made under subsection (1), the Federal Magistrates Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Magistrates Court includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.
The applicant contends that while some of the new causes of action may be capable of being dealt with in the associated jurisdiction of the Federal Magistrates Court (see section 18 of the Federal Magistrates Court Act) jurisdiction under the ASIC Act is exclusive to the Federal Court. See section 12GJ of the ASIC Act as follows:
12GJ Jurisdiction of courts
(1) Jurisdiction is conferred on the Federal Court in any matter:
(a) arising under this Division; or
(b) arising under Part 3 in its application in relation to an
investigation of a contravention of this Division;
in respect of which a civil proceeding may be instituted under this
Subdivision or under Part 3 as so applying.
(2) With respect to any matter:
(a) arising under this Division; or
(b) arising under Part 3 in its application in relation to an
investigation of a contravention of this Division;
in respect of which a civil proceeding is instituted under this
Subdivision or under Part 3 as so applying:
(c) the several courts of the States are invested with federal
jurisdiction within the limits of their several jurisdictions,
whether those limits are as to locality, subject-matter or
otherwise; and
(d) subject to the Constitution, jurisdiction is conferred on the
several courts of the Territories.
(3) Nothing in subsection (2) is taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.
(4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than the jurisdiction of the several courts of the States and Territories under subsection (2) and the jurisdiction of the High Court under section 75 of the Constitution.
That is a matter conceded by the respondents. In my view, that is a fact on its own that would cause me to transfer the proceeding although I also take into account that there are relatively complex issues of fact and law to be dealt with and that I am told that the matter will take two weeks or more.
In all of the circumstances of this matter, I am satisfied that it is appropriate for the issue of leave to amend the statement of claim to be left to the Federal Court. The pleadings in substantial part relate to matters outside the jurisdiction of this Court and involve the application of the Federal Court of Australia Act 1976 (Cth), the Federal Court Rules 1976 (Cth) as well as provisions of the TPA Act, the ASIC Act, the Corporations Act and the Fair Trading Act.
So far as the issue of costs is concerned, the applicant conceded that the costs of the second and third named respondents thrown away with respect to the discrete application that I have determined should be paid but limited to one day only. In my view the document that the applicant relied upon to substantiate his argument was the revised amended statement of claim that was filed on 8 August 2005. Accordingly, I am satisfied that the applicant should pay the second and third named respondents their costs with respect to both days.
I have fixed these, in accordance with the Federal Magistrates Court Rules, in the sum of $4,560 each and I have explained to Counsel the calculation of those costs.
Accordingly, in all of the circumstances, I make the following orders:
The applicant’s application for leave to amend the statement of claim in accordance with the revised amended statement of claim be reserved to the Federal Court of Australia.
That pursuant to section 39 of the Federal Magistrates Court Act 1999 (Cth), the proceedings be transferred to the Federal Court of Australia.
That the applicant pay the second and third named respondents’ costs thrown away each fixed in the sum of $4,560.
That the payment of the costs referred to in paragraph 3 hereof be stayed for a period of 30 days.
That all other costs be reserved to the Federal Court of Australia.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 12 August
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