CBFC Ltd v Skea

[2004] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CBFC LTD v SKEA [2004] FMCA 377

BANKRUPTCY – PRACTICE AND PROCEDURE – Transfer of proceedings to Federal Court to enable parties to make application to then transfer matter to State Court under cross vesting legislation – whether in the interests of justice to transfer matter.

Federal Magistrates Act 1999, s.39
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s.5(5)

Applicant: CBFC LIMITED (ABN 26 008 519 462)

Respondent: ROHAN GEORGE SKEA

File No: WZ 47 of 2004

Delivered on: 10 June 2004

Delivered at: Melbourne

Hearing Date: 10 June 2004

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr. K. Mony de Kerloy

Solicitors for the Applicant: Freehills

Counsel for the Respondent: Mr. Kilpatrick

Solicitors for the Respondent: Williams & Hughes

ORDERS

1. Application Number WZ 47 of 2004 be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999.

2. The costs of this Application be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 47 of 2004

CBFC LIMITED (ABN 26 008 519 462)

Applicant

and

ROHAN GEORGE SKEA

Respondent

REASONS FOR JUDGMENT
(Revised from transcript)

(As corrected)

1. In this Application both parties have sought from the Court an order that the Application be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999.  The Applications for transfer currently before this Court arose from the Notice of Motion filed 16 April 2004.  It is clear from the chronology of events on the file that there have been orders made when the matter first came before a Registrar of the Court.  On 18 May 2004, the Creditors Petition was adjourned to 26 May 2004 and costs reserved.

2. On 26 May 2004 when the matter returned before the Registrar, according to the file, orders were made that paragraph 1 of the then Notice of Motion be amended by deleting “Supreme Court of Western Australia pursuant to s.5(5) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)” and inserting “Federal Court of Australia pursuant to s.39 of the Federal Magistrates Court of Australia Act 1999.” Costs were ordered to be costs in the cause, and the Petition was otherwise adjourned to 2 June 2004. That date, according to a file note, was vacated and the matter listed before this Court this day for an audio link mention.

3. When the matter was listed for mention, the Court had before it the Applicant's submissions filed 9 June 2004 which asserted, and now conceded to be incorrect, that there had been a short hearing on 18 May 2004 which resulted in a number of orders, including orders that the matter be transferred to the Federal Court.  It is clear to me upon a proper reading of the file, and also upon consideration of minutes of consent orders dated 31 May 2004, that leaving aside the error in the date of 18 May 2004 when it should have been 26 May 2004, the Registrar did not make any order transferring this matter.  Contrary to the submissions made by the Applicant dated 9 June 2004 and further asserted at the commencement of this hearing by the Applicant’s Representative, it is clear that the Registrar did not make an order transferring the proceedings, and the matter was properly before this Court for this Court to determine that issue.  It should be noted in fact a document headed “Minute of Consent Orders” signed by both solicitors in this matter had been presented to the Court seeking an order that the proceedings be transferred to the Federal Court.  The date of that document is 31 May 2004.  It is extraordinary therefore, in my view, that given that on 31 May 2004 a Minute of Consent Orders had been presented seeking an order to transfer, and then in submissions filed

   
   

   9 June 2004, the Applicant asserts that an order had already been made by the Registrar of the Court transferring the proceedings. Hence, it is clear to me that it is for this Court to now determine on the material before it, whether it is appropriate to exercise its discretion to make an order that the Application be transferred pursuant to s.39 of the Federal Magistrates Act. That section provides for a number of matters which should be taken into account.

4. In my view, the main thrust of the submissions made for and on behalf of the Applicant and which are the subject of consent of the Respondent include the fact that there are currently proceedings in the Supreme Court of Western Australia between the same parties in this Application and others and that there is an overlap in terms of factual material and a potential at least for any possible trustee in bankruptcy to be involved in those proceedings.  There are other issues, which can and should be raised properly before the Federal Court of Australia.  It is equally clear to me that if any Application is to be made which provides for the proceedings to be transferred from a Federal Court to a State Court pursuant to the cross vesting legislation, then that can only occur if these proceedings are transferred by this Court to the Federal Court.   The Federal Magistrates Court does not have power under the cross vesting legislation to transfer a matter of this kind to the State Supreme Court.

5. For that reason alone, it seems to me as a matter of practicality, it is appropriate that I should exercise my discretion in favour of the Application to transfer on the basis that I am satisfied it is in the interests of the administration of justice to do so in this particular case. In a matter of this kind hopefully the parties will then have an opportunity of presenting material to the Federal Court, which of course will then, on the material presented to it, determine whether or not the matter is to be transferred to the State Court.

I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:10 June 2004