Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd

[1996] FCA 291

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY           No VG 847 of 1995

GENERAL DIVISION

B E T W E E N :

COSTA VRACA PTY LTD
  Applicant

A N D :

BERRIGAN WEED AND PEST CONTROL PTY LTD AND ANOR
  Respondents

COURT:    NORTHROP J

PLACE:    MELBOURNE

DATE:     22 MARCH 1996

REASONS FOR JUDGMENT

This is one of those difficult cases where the Court has to decide whether this action should be cross-vested to the State Supreme Court pursuant to the provisions of the cross-vesting legislation. The power to do this and the jurisdiction conferred upon the State Courts to hear and determine any matters so cross-vested, is to be found in subsection 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987. In this case the only relevant consideration relates to paragraph 5(4)(a) and (b)(iii) namely whether in the interests of justice, the matter should be cross-vested. Counsel for the applicant has referred to two authorities, Mansell v Cumming (1989) 86 ALR 637 at 639 and Trade Practices Commission v Collings Constructions (1994) 16 ATPR 42,561 at 42,570. References to authorities in cases of this kind are helpful insofar as they refer to principles to be applied and
also as illustrations how the Courts from time to time apply those principles to the facts of the case before the Court.  In Mansell v Cumming I attempted to set out the principles to be applied and although there are other cases both at a State level and in this Court, dealing with cases of this kind, eventually the matter comes down to an exercise of discretion.  It is not an unfettered discretion.  It is a discretion in which on the facts of this case the Court must decide whether in the interests of justice the matter should be transferred.

In this case the claims brought by the applicant involve damages arising from the destruction of a crop of tomatoes. It is alleged that the respondent, pursuant to an agreement whereby the respondent agreed to spray the crop, the respondent used equipment which had been contaminated by a pesticide and that contamination had the effect of destroying the tomato crop of the applicant. Looking at the statement of claim, it is apparent that there was nothing said or done by the respondent which constituted conduct of itself which was or would be misleading or deceptive in the sense of section 52 of the Trade Practices Act 1974. What is being said is that there was silence on the part of the respondent in not disclosing the fact that the tanks in the aircraft in which the spray was to be kept, had been used for the pesticide and that this contamination could have the effect of damaging the tomato crop. There is no doubt that in appropriate circumstances silence on a particular matter may constitute misleading or deceptive conduct. That normally arises where there is other conduct engaged in by a respondent in circumstances where it is incumbent on the respondent to disclose the matter to which silence applies. There are also claims in the statement of claim relying on breach of contract and of negligence and at the moment the damages claimed are not specified in any particular, but it would appear that they would be similar no matter which course of action succeeded. In addition action is taken against the actual person who controlled the respondent company under the aiding and abetting provisions of the Trade Practices Act but, if the matter is cross-vested to the Supreme Court, the Supreme Court would have jurisdiction to deal with that claim as well.

In this case the Court itself raised the question of whether the matter should be cross-vested or not and there is no motion by the respondents that it be cross-vested, although helpful submissions were made on behalf of the respondents in relation to the general principles to be applied in cases of this kind.

Counsel for the applicant has indicated a number of factors which should be considered by the Court in deciding this question, including the availability of particular evidence including the application of the Commonwealth Evidence Act, the procedures of the Courts, the venue for the trial and likely hearing date.  As far as the Evidence Act is concerned, no reference was made to whether those provisions would not apply in a State hearing.  It was also submitted that there is no basis for saying that the common law claims were the essential part of the action brought by the applicant but that there was a genuine trade practices claim as well as the common law claims and that there is no objective factor which makes it preferable for the proceedings to be determined by the Supreme Court of Victoria.  The fact that, from what was said, the Supreme Court does not have the directions hearing system of Court management this Court has, in my opinion, is immaterial in this regard.

There is much to be said for the view that this matter should be cross-vested.  I think as time goes on, it will become apparent that the Federal Court is going to exercise power to cross-vest far more often than it has in the past.  The practitioners in Victoria and, for that matter, in Australia should take note of that possibility.  It is also likely that the question of cross-vesting will be raised at the first directions hearing more and more.  In this case, the matter was raised by the Court at the first directions hearing but deferred to the second directions hearing.  This is the first occasion when the Court has had to consider the matter.  It was raised today because of the warning given at the first directions hearing that it should be raised now.

Having regard to this factor, that this is a second directions hearing, having regard to the fact that, to some extent, in the past this Court has been rather lax in considering the question of cross-vesting, and having regard to the fact that here the Trade Practices Act claim is, to some extent, rather novel, it was, as stated by counsel at the cutting edge of the law, whatever that might mean, and having regard to what was said in the case of Warner v Elders Rural Finance Limited (1993) 41 FCR 399, I have formed the view that this is a case where it would be inappropriate to order that the matter be cross-vested.

Nevertheless, I want to make it clear, and this should be apparent from what I have said already, that the fact that I am not cross-vesting this case, should not be used in the future as a ground for not cross-vesting appropriate cases in the future, particularly as the practice becomes more common for matters to be cross-vested. Implicit in what is being said is that the legal profession should be aware of this matter and be prepared to have the question of cross-vesting debated at the first directions hearing. At the first directions hearing in future also there may well be a greater concentration of activity directed to the jurisdiction of the Court altogether to hear that matter. I should add that in this case, the amount involved is such that it is inappropriate to transmit the matter to the County Court under section 86A of the Trade Practices Act.

In all the circumstances, the Court will make the directions as set out in the minutes of order which I will initial and place on the Court file.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the Applicant:       Mr A.A. Monichino

Solicitor for the Applicant:     Cornwall Stodart

Counsel for the Respondents:     Mr C.D. Golvan

Solicitor for the Respondents:    Morrisons

Date of Hearing:                 22 March 1996