Corbett, Francis James v State Bank of New South Wales

[1995] FCA 1142

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 502 of 1993
  )
GENERAL DIVISION                 )

BETWEEN:FRANCIS JAMES CORBETT

First Applicant

MICHELE MARIE CORBETT

Second Applicant

WARAWAY PTY LIMITED

Third Applicant

AND:STATE BANK OF NEW SOUTH WALES

Respondent

7 DECEMBER 1995

REASONS FOR JUDGMENT
LOCKHART J.
Before the Court this morning are three matters, one is matter number 294 of 1993, the second is matter number 502 of 1993 - both being in the original jurisdiction of the Court - and the third is appeal number 768 of 1995, being in the appellate jurisdiction of the Court. What appears to have happened is as follows: the applicants, of whom there were four in number, sued the respondent, the State Bank of New South Wales, for alleged contravention of s. 52 of the Trade Practices Act 1974, based on alleged misleading or deceptive conduct.

The applicants have also sued the State Bank in the Supreme Court of New South Wales Equity Division, it would appear in relation to alleged contraventions of the section of the New South Wales Fair Trading Act which corresponds to s. 52 of the Trade Practices Act.  In the Supreme Court proceedings, however, the State Bank had brought a cross-claim against the applicants; and the Supreme Court made an order in the proceeding before it became proceeding 502 of 1993 of this Court (on 12 July 1993),  pursuant to s. (51) of the Jurisdictional Court Cross-vesting Act 1987 (Cth).

Orders were made by another judge of the Court on 8 December 1993, consolidating the two proceedings 294 and 502 of 1993, and ordering that they be heard together and that all matters concerning the liability of the State Bank be determined as a preliminary question, reserving any issue as to the quantum of damages. 

It appears from the files that the trial judge, Moore J, then took control of the matters and heard them.  It would also appear that his Honour heard only the issues of liability, and not questions of quantum.  Correctly, his Honour heard the issues of liability raised in the two consolidated matters. 

However, when judgment was given by his Honour on 21 September 1995, although he referred on page 2 of his reasons to the history of the matter including the order of consolidation that had been made earlier by another judge of the Court, it seems that his order was limited to dismissing the proceeding 294 of 1993. 
     Subsequently, the unsuccessful applicants filed a notice of appeal to the appellate division of this Court on 11 October 1995, appealing from the whole of Moore J's judgment given on 21 September 1995.  That appeal came into the call over list of Full Court matters before me on Tuesday of this week, 5 December 1995. 

Counsel for the State Bank asked the Court today formally to dismiss proceeding 502 of 1993 on the basis that his Honour, so it is said, must have overlooked the fact that when giving judgment he was dealing with both matters, and not just 294 of 1993.  I say nothing about that.  Counsel also says that the sensible course to take, and the correct course to take, is then simply to have the cross‑claim, which would appear to be extant in the proceeding as consolidated, stood over to a date to be fixed.  That course is opposed by Ms Georgiou who appears for the applicants, now the appellants.  I think the proper course to take in all the circumstances is to have both matters restored to the list before Moore J so that he as the trial judge can decide what to do. 

Although I have not heard full argument on the point, as at present advised, it seems to me that any appeal from the judgment of Moore J in relation to 294 of 1993 is interlocutory because the cross‑claim in 502 of 1993, and therefore in the consolidated proceeding, is extant.  All issues between the parties have not yet been determined. Accordingly, leave to appeal would need to be sought.  I say 'as at present advised' because it may be that on further argument the position will appear differently.  But I have no final view on the point.  Provided the parties are content with a single judge dealing with it, it may be appropriate to move for leave to appeal from his Honour's judgment before him.  That is a matter the parties can consider. 

Because the appeal has been set down for hearing in the February appellate sittings, the matter should also be relisted for directions in the new term before me as the list judge to see what has happened in the meantime.   Whether it is in a position to proceed or not will depend upon the determination of the outstanding matters to which I have already referred. 

So, the Court orders that the matters 294 and 502 of 1993 be restored to the list before Moore J by arrangement between the parties and his Honour's associate, and that the appeal 768 of 1995 be placed in the list for directions before me on Thursday, 8 February next, at 9.30.  I direct also that those two files plus the appeal file 768 of 1995 should be placed with the papers to be dealt with in the directions on that February day. 

I order that the costs of today's motion be reserved. 

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  7 December  1995

Counsel for the Applicant    :        Ms C Georgiou

Solicitors for the Applicant :        Dennis & Co

Counsel for the Respondent   :        Mr C Harris

Solicitors for the Respondent     :        Simpson & Harrison

Date of Hearing             :        7 December 1995

Date of Judgment            :        7 December 1995