E.M. & E.S. Petroleum Pty Ltd v Shimden Pty Ltd

[1991] FCA 282

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOIJTH WALES DISTRICT REGISTRY) NO. NG 92 of 1991

GENERAL DIVISION 1

Between: B.M. h E.S. PETROLEUM PTY

LIMITED

Applicant

RECEIVED	and: SHIMDEN PTY LIMITED h ORS
29MAY 1991

FEDERAL COURT OF Respondent

EX TEMPORE JUDGMENT

Einfeld J Svdney 14 Mav 1991

I will grant the stay of the proceedings sought. There are a number of reasons that I think are appropriate but I will not outline them in detail now. One of them is that the Land and Environment case has already been commenced and will obviously be able to come on for hearing before any hearing in this Court. The only alternative to that hearing would be so to reconstitute these proceedings as to litigate in the trade practices case, by way of the accrued jurisdiction, matters arising under the Environmental Planning and Assessment Act. It is not appropriate for this court to exercise jurisdiction of that kind when an expert and readily available alternative presents itself. Whilst I accept that there may be a circumstance in which the Land and Environment Court proceedings might not finally determine the principal issue of liability in the trade practices case, nevertheless on what I have been told so far, I think it is more likely that it will resolve it than that it will not resolve it. It will at least greatly assist in any resolution of the case under the Trade

Practices Act.

The question that remains is whether I should transfer the trade practices case out of the Federal Court into one of the state courts. As it happens, it is a proposal made by the respondent in the case but I also raise it as a matter in which the court should take some role.

The case, as it is presently pleaded, claims a return of the deposit of some $75,000. The statement of claim suggests that there are additional matters claimed which would raise the base claim to over $120,000 and interest is claimed from a little less than a year ago, which by the time of the hearing will further increase that amount.

[ DISCUSSION ]

I think this matter is likely to turn out to be a matter in which no specialised knowledge of the Trade Practices Act will be a major factor in the litigation. It seems more likely to be a matter which either arises under the Fair Trading Act or	will arise in the exercise of the equity jurisdiction of the	Supreme Court. In view of the fact that the other litigation
is in a state court, I think it is appropriate in the circumstances to transfer the case into the jurisdiction of the state courts.
[ DISCUSSION RE COSTS ]
I do not think that there has been demonstrated any merit at all in the resistance to a motion which effectively was nothing more than an application for an adjournment to a time which would have been likely to occur in any event. In other words it is most unlikely that the Federal Court would have been able to give a date for the hearing of the case until the Land and Environment Court matter had been disposed of. In those circumstances all that was really being asked for here in substance was an adjournment of the interlocutory processes, directions hearings and the like of the Federal Court proceedings to abide the outcome of the Land and Environment Court case.
As such it should not have been a defended notice of motion. I order that the costs of the applicant for the motion should be paid by the respondent to the motion.

I certify that this and the two (2) preceding pages are a true copy of the Ex Tempore

Judgment herein of his Honour Justice Einfeld

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