Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd

FEDERAL COURT OF AUSTRALIA

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor

[2004] FCA 169

PRACTICE AND PROCEDURE – application to cross-vest proceedings from Federal Court to Supreme Court – no issues of principle

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4)

CONCRETE PTY LTD v PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD AND GHASSAN FARES

N 1509 OF 2003

CONTI J
1 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

11 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion filed 9 February 2004 be dismissed.

2.        Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	1 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed 9 February 2004, the first and second respondents (‘respondents’) seek a variety of orders relating to the cross-vesting of proceedings N 1509 of 2003 to the Supreme Court of New South Wales.  This application is vigorously opposed by the applicant on a number of grounds, primarily on account of the fact that a hearing date was consensually agreed to by both parties and fixed on 2 February 2004 for early April of this year in this Court. 

2. The criteria for cross-vesting proceedings from the Federal Court to the Supreme Court of a State are contained in s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (‘Cross-Vesting Act’). Although counsel for the respondents did not specifically refer to a subparagraph in s 5(4) of the Cross-Vesting Act on which he relied in his oral submissions on the motion (no written submissions were provided prior to the hearing of the motion, but rather reliance was placed on the affidavit of Benjamin Barrak, solicitor for the respondents, sworn and filed 9 February 2004), his argument broadly outlined leads me to conclude that he relied on sub-par (iii) of par (b) thereof, the full statutory context of which reads as follows:

   ‘(4)     Where:

   (a)a proceeding (in this subsection referred to as the “relevant proceeding”) is pending in the Federal Court or the Family Court (in this subsection referred to as the “first court”); and

   (b)it appears to the first court that:

   …

   (iii)it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of a State or Territory;

   the first court shall transfer the relevant proceeding to that Supreme Court.’

3. The issue therefore arising is whether it is in the ‘interests of justice’ that the cross-vesting order sought by the respondents ought…