G a R Muirhead v Commonwealth Bank of Australia

[1994] FCA 921

GEORGE ARTHUR ROBERT MUIRHEAD AND STEPHANIE SUSAN MUIRHEAD v. COMMONWEALTH
BANK OF AUSTRALIA AND ERNEST GEORGE HARRIS
No. QG146 of 1994
FED No. 921/94
Number of pages - 3
Transfer Of Proceedings - Stay Of Proceedings

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Transfer Of Proceedings - whether the Federal Court has expertise in relation to matters raised - Commonwealth Statues referred to in proceedings

Stay Of Proceedings - temporary stay - courts discourage duplicity of proceedings. $P
Judiciary Act 1903, s. 39B
Jurisdiction of Courts, (Cross-Vesting) Act 1987,s. 3(1)(e)

Sterling Pharmaceutical Proprietary Limited v. The Boots Company (Australia) Pty Limited (1992) 34 FCR 287

HEARING

BRISBANE, 28 November 1994
#DATE 28:11:1994

Counsel for the applicant: Mr D.C. Fitzgibbon

Solicitors for the applicant: Woodgate Morgan

Counsel for the respondents: Mr P.D. McMurdo QC

Solicitors for the respondents: Gadens Ridgeway

ORDER

THE COURT ORDERS THAT:
1. Proceedings number QG146 of 1994 be transferred to the

Supreme Court of Queensland to be heard with action number 1452 of 1994.

2. The applicants pay the respondents' costs of and incidental

to this application and to the proceedings to date to be

taxed.

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

JUDGE1

KIEFEL J On 24 October 1994 the applicants filed their applications in these proceedings and on the same day delivered a defence in proceedings in the Supreme Court brought by the Bank, the respondent to these proceedings, against them on 13 September 1994. The Commonwealth Bank, by its statement of claim in those proceedings, seeks the balance of moneys due to it under financial facilities and after allowing for the proceeds of sale of property together with sums said to be due under a number of orders for costs made in the Supreme Court in various actions or applications.

1. The defence in the Supreme Court and the statement of claim filed in this court raise the same issues, as was conceded by counsel for the Muirheads. Whilst Mr Harris, the receiver appointed by the bank, is not presently joined in the Supreme Court proceedings there appears to be no reason why he could not be joined as a party to a counter-claim. The other, previous, proceedings in the Supreme Court do not appear to be of particular relevance to this application save in one respect, namely that it will apparently be contended for the Muirheads, in whichever court determines the issues arising between them and the bank, that the bank is estopped from raising a particular question, but this seems to me a minor matter.

2. The bank has applied to stay these proceedings temporarily as distinct from permanently (as to which see Sterling Pharmaceutical Proprietary Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287, 294-5) or to have these proceedings transferred to the Supreme Court under the provisions of the cross-vesting legislation. The issues raised by the Muirheads will require reference to some Commonwealth statutes, in particular the Bills of Exchange Act and the Trade Practices Act, and to the Constitution itself. It also appears, however, that allegations concerning the bank's breach of its duty as mortgagee on sale will require reference to the Queensland Property Law Act, and Mr Fitzgibbon of counsel, who appeared for the Muirheads, informs me that another Queensland Act, an earlier Bill of Exchange and Other Instruments Act, will also be relied upon.

3. The principal submissions for the Muirheads were twofold. Firstly, that the action is, in reality, one brought against the Commonwealth, or more particularly an officer of the Commonwealth within section 39B of the Judiciary Act 1903, and as such is a special Federal matter within section 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. Secondly, it was submitted this court had special expertise in relation to the matters raised. It is, as the bank concedes, correct to say that the bank was "the Commonwealth" at May 1990, the time when certain contraventions of sections 52 and 52A of the Trade Practices Act are alleged to have occurred or at least commenced, the conduct being said to range over a period to July 1992. From about December 1990, however, the bank has been owned only in part by the Commonwealth and a percentage, the extent of which is not agreed, is held by the public after subscription to shares. It seems to me, however, that these proceedings are brought against the Bank as constituted at the date of the filing of the application, at which time it could not be characterised as "the Commonwealth". But in any event, as Mr McMurdo QC for the bank points out, the "matter" here for the purpose of section 39B is not one in which relevantly a writ of mandamus or an injunction is sought against an officer of the Commonwealth. Some mandatory orders are sought, but against the bank itself and not any officer of it. Neither section 84(2) Trade Practices Act, nor the provisions of the Crimes Act alters the orders sought in these proceedings.

4. In relation to the second matter, it seems to me that the Supreme Court, dealing as it does regularly with commercial matters, would often have resort to the provisions of the Bills of Exchange legislation and would commonly deal with actions in which section 52 or 52A Trade Practices Act are raised. The contraventions here alleged do not seem to me to raise any special or discrete matter by which it could be said this court had greater breadth of expertise or special interest in the questions arising.

5. A remaining submission, namely that there would now be an apprehension of bias if the Supreme Court were to hear the matter was faintly raised but not pursued.

6. The timing of the institution of actions is often an important question in these applications. The affidavits here disclose that the possibility of proceedings being commenced in this court was first raised by the applicants on 5 October 1994 and after the Supreme Court proceedings had issued. Whilst Mr Fitzgibbon says there was earlier general mention of that possibility, the affidavit by his instructing solicitor does not refer to it. The bank did not for its purposes need to bring proceedings in this court. Whilst the material also shows a desire at some point to have proceedings issue out of the Federal Court and in Sydney for the convenience of the Muirheads, given their intention to reside at Queanbeyan, that is no longer the case, and I am told a positive decision has been made to have the matter heard in Queensland.

7. The courts discourage duplicity of proceedings. It seems to me that a temporary stay would have the potential to encourage just that, or at least lead to a position where there is lengthy argument as to whether something has been determined in the other proceedings. In these circumstances, I propose, then, to transfer the proceedings to the Supreme Court. I order that these proceedings, number QG146 of 1994, be transferred to the Supreme Court of Queensland to be heard with action number 1452 of 1994.

8. I further order that the applicants pay the repondents' costs of and incidental to this application and to the proceedings to date to be taxed.