Down to Earth Spring Water P/L v State Bank of New South Wales
[1991] FCA 487
•19 AUGUST 1991
Re: DOWN TO EARTH SPRING WATER PTY LIMITED; NILBROOK PTY LIMITED;
FOUR M.J. PTY LIMITED; GARY ROBERT SMITH; JASON PARIS and ADAM DENVER LOEL
And: STATE BANK OF NEW SOUTH WALES
No. G457 of 1991
FED No. 487
Practice and Procedure
(1991) 31 FCR 81
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)
CATCHWORDS
Practice and Procedure - Claim against State Bank - cross-vesting legislation - whether in interests of justice that proceeding be transferred to Supreme Court.
HEARING
SYDNEY
#DATE 19:8:1991
Counsel and Solicitors for Applicants: Mr J. Svehla instructed
by M.D. Nikolaidis and Co.
Counsel and Solicitors for Respondent: Mr M.R. Aldridge instructed
by Gordon and Johnstone
ORDER
That the proceeding be transferred to the Supreme Court of New South Wales.
Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application for interim relief pending the final hearing of the principal proceedings. In the principal proceedings, the applicants seek relief under the Fair Trading Act 1987 (N.S.W.). Given the identity of the respondent, the applicants accept that, by virtue of the decision of the High Court in Bourke v State Bank of New South Wales (1990) 93 ALR 460, no cause of action under the Trade Practices Act 1974 is available. In their statement of claim, the applicants allege that jurisdiction is conferred on this Court by s.4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (N.S.W.). In support of the exercise of jurisdiction of this Court under the cross-vesting legislative scheme, counsel for the applicants relied upon the reasoning of Higgins J. in Baffsky v John Fairfax and Sons Ltd. (1990) 97 ACTR at 4-7. On behalf of the applicants, it was contended that the matter should not be transferred to the Supreme Court of New South Wales because, although the claim was a substantial one, the proceedings would be dealt with more expeditiously in this Court. No evidence to support this contention was tendered.
On the second reading of the Bill for the Commonwealth cross-vesting legislation, the Attorney-General said (Hansard, House of Representatives, 22 October 1986) at 2555):
"The reasons for the proposed scheme are that litigants have occasionally experienced inconvenience and have been put to unnecessary expense as a result of, firstly, uncertainties as to the jurisdictional limits of Federal, State and
Territory courts, particularly in the areas of trade
practices and family law; and, secondly, the lack of power in these courts to ensure that proceedings which are
instituted in different courts, but which ought to be tried together, are tried in the one court. Jurisdictional
difficulties do the law and the community no good. They
result in litigants with a genuine dispute requiring
judicial determination being faced with the anguish, delay and additional expense which flow from the sterile and
pointless need to search for a court, or courts, with
jurisdiction to resolve the dispute. The seriousness of
these jurisdictional difficulties to the community is all
the more pressing because they occur in areas such as family law and trade practices which touch the everyday activities of so many people and corporations in Australia."
The institution of these proceedings in this Court was not done for any reason relating to uncertainty in the jurisdiction of the Supreme Court. That Court is the natural forum for this dispute, concerned as it is with the construction and application of the State statute and with a claim made against the State Bank. The jurisdiction of the Federal Court is primarily concerned with matters involving the interpretation and application of Commonwealth legislation, including proceedings against officers of the Commonwealth (see the second reading speech on the Federal Court of Australia Bill, Hansard, House of Representatives, 22 October 1986 at 2556). That is to say, the Federal Court is not a court of general commercial jurisdiction.
By s.5(4)(b)(iii) of the cross-vesting legislation, if it appears to this Court that, having regard to the interests of justice, it is more appropriate that the proceeding be determined by the Supreme Court, this Court shall transfer the relevant proceeding to the Supreme Court. In my opinion, the interests of justice suggest that it is more appropriate that the Supreme Court determine the proceeding. Although not a decisive consideration, that Court is the natural forum for the proceedings. Moreover, this Court is clearly an inappropriate forum for a claim against a State Bank involving the interpretation and application of a State statute (cf. Voth v Manildra Flour Mills Pty. Ltd. (1990) 97 ALR 124 at 141). For this purpose, the reasoning of Wilcox J. in Bourke's Case at first instance (1988) 85 ALR 61 at 77-8 is clearly distinguishable because accrued jurisdiction was there available.
I propose to order the transfer of the proceeding.
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