Coleman, P. v International Pools Pty Ltd

[1987] FCA 212

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTPALIB	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.68 of 1980
1

DIVISION GENERAL )

EETWEEN : F. COLEMAN AND ANOR

Applicant

'm :	INTERPIATIONAL FOOLS
PTP . LTD.

Respondent

Judqe makinq order: Gummow J.

Date of order:	3 April 1987
mere made:	Sydney

I4INUTE OF ORDER

The Court Orders That:

(1)	The Applicatlon and Statement of Claim are struck out
f o r want of ~urisdictlon.
( 2 )	There be no order as to costs of the rnotlon.

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( 3 ) There be no order as to costs of the proceedings

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NOT FOR PUBLICATION

III THE FEDERAL COURT OF AUSTP,4LI.4	)
1

NEW SOUTH WALES	DISTPICT	REGISTRY	)	No. G.68 of 1980
)

DIVISION GENERAL 1

BETWEEN: P. COLEMAN AND ANOR

Applicant

AND :	INTERNATIONAL FOOLS
FTTI . LTD.

Respondent

GUM40W J. 3 Aprll 1987

REASONS FOR JUDGMENT

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I HIS HONOUR: The Court today has before it a notice of motlon

filed by the Respondent on 1 December 1986, in which an order

1s sought that the application and statement of claim in these

proceedings be struck out for want of lurisdictlon.

The proceedings were commenced In 19E0, and the pleading in its

present form is an amended statement of claim dated 29 August

I 1980 and filed on 3 September 1980. The matter was before the

court on several occasions in 1980, and in October 1980 there

vas filed a notice of motion, in similar terms to the current

motion, in which an order was sought strlking out the pleading

for want of jurlsdiction.

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The position was reached in 1980 that on 17 November in that

year, counsel then appearing for the Appllcants on the one side

and for the Respondent on the other made submissions to the

Court whlch produced an order standing the matter over

generally with liberty to either party to restore on seven days notice to the other party. Costs were reserved. At that stage

there may have been some room for doubt as to the extent of the

jurisdictlon in this court both in matters arising under Part V

of the Trade Practlces Act 1974 and in matters In which

reliance was placed on the Court’s accrued ~urisdictlon.

In the present case the amended statement of claim refers to an

agreement reached between the Respondent and the Applicants for

the sale of a fibreglass swimming pool of certain measurements.

It asserts the implication of terms pursuant to ss. 70 and 71

of the Trade Practices Act and goes	on to assert breach	of
those terms.

The amended statement of claim alss alleges a breach of

contract. It is sald In respect of this clam that the goods

xere not fit for the particular purpose for xhich they were

ordered and were not of merchantable quality, and particulars

are glven as to the defects In the pool.

Whatever may have been the uncertainty on any question of

jurisdiction in 1980, it became clear following the decisions

of Brennan J. In this court in Arturi v. ZUPPS Motors pty

Limited, (1980) 49 FLR 283 (delivered on 19 December 1980) and of Toohey J. in this court in Polsardv v. Australian Guarantee Corporation Limited, (1981) 52 FLR 240, that this Court had no

I jurisdiction in respect of the claims In the present

!	proceedings which are based on the Trade Practices Act, and
!	this is because the allegations Involved are based in Division
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2 of Part V rather than in other provisions of the Act. The
process of reasoning which leads to this concluslon is set out
In the ~udgments to which I have referred.
It was also perhaps unclear in 1980 what was the extent of the
accrued jurisdiction of the Court to entertain a claim In, for
example, contract when that claim was attached to a claim based
in the Court’s statutory ~urisdlctlon. The High Court
delivered judgment in Philip Morris Inc. v. Adam P. Brown Male
Fashions Ptv.Ltd (1981) IS8 CLR 457 on 10 February 1961. It
is, of course, now settled and has been settled for some years that a contractual claim may be attached in this xay if it is
appended to and part of the one “matter“ to which the Court’s
~urisdictlon is attracted.
However, in the present case it is, a I have indicated, clear
and has been clear for some years that the Court has no
principal or primary ~urisdiction under Division 2 Part Q of

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the Trade Practices Act, and therefore in the present case

I	there is "matter" before the Court to which any claim in contract could be attached. It follows that there is not and never has been jurisdiction in respect of the claims that have
been made, and it follows that the application and the
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statement of claim should be struck out.
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Mr Coleman, the first applicant, appeared in person and has put
to me in his submissions the background to the matter. It is
important to understand that nothing said today on the question
of jurisdiction decides adversely to him, or indeed favourably
to him, issues as to the merits of the case and the defects or
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otherwise of the particular pool that was supplied. What is
being decided here today is that this Court is not the
appropriate Court for the entertainment of that complaint.
That brings me to the question of costs. As I mentioned, on 17
November 1980 the matter was stood over generally with liberty
to either party to restore. It appears that since that time
the Applicants have been divorced and that a deed In respect of
their financial affairs was approved by the Famlly Court of
Australia under S. 07 of the Family Law Act.
The Respondent to the proceedings, the Applicant to the motion, tendered four letters which passed from the solicitors for the
Respondent, International Pools Pty Limited, to Messrs Allan D.
Farrar & Co. solicitors, the first being on 23 September 1983,

the second on 25 July 1984, the third on 8 January 1935 and the

last on 20 August 1985. In this period the question of

jurlsdictlon remained unagitated before the Court.

It is imperative when a party in the position of that of the

applicant in the present motion wishes to agitate an issue

going to jurisdiction that it do so forthwith and with maximum

possible despatch, otherwise the Court and the parties are left

in doubt as to the disposition of the matter, and that

unfortunate tendency is illustrated	by some of the matters put
to me this morning.

The position is that nothing substantive was done to bring the

matter back to the Court between 17 November 1980 and the

filing of the present notlce of motion on 4 December 1986. In

my view, it would be an approprlate exercise of my discretion

as to the award of costs to make no order as to costs. The

result is that first, the application and statement of claim

are struck out for want of jurisdictlon, and secondly, no order

is made as to costs of the motion or of the proceedings.

I certify that this and the four ( 4 )

preceding pages are a true copy of the

Reasons for Judgment	of his Honour Mr Justice
Gummow.

Assoclate: M& .

Date : 3 April 1987

l	Y
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6.

First named Applicant in person:

Mr P. Coleman

Counsel for 2nd Applicant:

P.M. Winch Esq.

Solicitor for Respondent:

Mr -D. McAlary of

Messrs Hunt and Hunt

Date of Hearing:

3 April 1987

Date of Judgment:

3 April 1987

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