Giorgi, A.P. v Deutshe Bank (Asia)

[1989] FCA 480

JUDGMENT No. .!t.8..C)1...'/...8.ft-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
QUEENSLAND DISTRICT REGISTRY	1 QLD. G8 of 1989
1
GENERAL DIVISION	)

BETWEEN:

ANN PATRICIA GIORGI

Applicant

AND :

MINUTE OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	3 AUGUST 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

( 1 ) pursuant to S. 5 ( 4 ) of the Jurisdiction of Courts (Cross-vesting) Act 198T ICth.), these proceedings be transferred to the upr re me^ Court o~-N.s.w.

NOTE :  Settlement and entry of orders is dealt with by Order 36
of the Federal Court Rules. ---- -,. .

( 2 ) the costs of the two notices of motion

filed by the respondents be reserved to
the Supreme Court of N.S.W.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
QUEENSLAND DISTRICT REGISTRY	1 QLD. G8 of 1989
)

GENERAL	DIVISION	1
BETWEEN:

ANN PATRICIA GIORGI

Applicant

AND :

DEUTSCHE BANK (ASIA)
ERDMAN VOGT
ROBERT FAWBERT

PHILIP LEO GLEESON

Respondents

SPENDER J.

BRISBANE

3 AUGUST 1989.

EX TEMPORE REASONS FOR JUDGMENT

These are notices of motion on behalf of all four
respondents seeking orders that the proceedings be stayed or

dismissed on the grounds that they are frivolous, vexatious or an

matter be transferred to the Equity Division of the Supreme Court	abuse of the processes of the court or, alternatively, that the	of New South Wales pursant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth.).
The original application claims an order pursuant to S. 87 of the Trade Practices Act 1974 or, in the alternative, a declaration that the whole of a deed of loan as varied and the

I

bills of mortgage securing it are void as against the applicant or, alternatively, void in respect of any sum in excess of $500,000.00 or, further in the alternative, a declaration as to the rights of the applicant and the first respondent pursuant to the loan arrangements. Alternatively, the applicant claims a declaration that the loan deed, the variation and the combined effect of the mortgages are void as against her in respect of any sum in excess of $600,000.00, or an order varying the loan deed, the variation and each of the bills of mortgage so that the security granted thereunder to the first respondent is limited to $600,000.00. The applicant also seeks any necessary accounts and inquiries, and damages pursuant to S. 87 of the Trade Practices Act 1974 or at common law. Additionally, exemplary damages were sought.

It is pertinent to note that in the statement of claim allegations were made that various of the transactions between the applicant and the first respondent ("the bank") were subject to the provisions of the Money Lenders Act 1916 (Qld.) and the Money Lenders and Infants Loans Act 1941 (N.S.W.).

The application to dismiss or stay is based on what is said to flow from the decision of the High Court in Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 147 C.L.R. 589 at 630.

It was submitted on behalf of the respondents that what

is claimed in this court could have been raised in previous

litigation in the Equity Division of the Supreme Court of New
South Wales. Alternatively, it was submitted that pursuant to

S. 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987

(Cth.), this matter should be sent to the Supreme Court of New

South Wales.

The curial history of this matter makes it a case E

excellence for such a transfer. Given the history of the litigation in the Supreme Court of New South Wales, it is in the interests of justice that that court determine the proceedings.

I propose to transfer these proceedings to the Supreme Court of New South Wales under the cross-vesting legislation.

The curial history of this matter makes it clear also that I ought not to determine the possible application of the principle in Anshun's Case. Equally, the question of a stay is a matter which appropriately should not be determined by this court, but which should be left to be dealt with by the Supreme Court of New South Wales.

The position is that, by a judgment given on 17 November 1988, Cohen J. gave orders dismissing the applications No. 4644

of 1985 and No. 2326 of 1986. I was informed by counsel that appeals have been lodged from those orders but that those appeals are not likely to be heard until next year. I am also told that the proceedings initiated in this court would not be further pursued were the appellant to be successful in the Court of Appeal in New South Wales. It may then be that a sound basis exists for the Supreme Court to stay further proceedings (if there are to be any) in the matters transferred to it, until the

determination of that appeal. But that is clearly a matter for
the Supreme Court of New South Wales and not for this court.

The history of the proceedings in the Supreme Court of New South Wales enlivens the purpose of the cross-vesting legislation, which is to avoid forum shopping and the fragmentation of litigation so that, as far as possible, all aspects of a dispute are decided in a single court. That history

. appears sufficiently from a judgment of Cohen J. given on 22 September 1988, which was exhibited to an affidavit of Peter Ewan Kennedy filed in these proceedings on 12 July 1989.

The New South Wales Supreme Court action No. 4644 of 1985 between Ann Patricia Giorgi, Somerset Carlo de Chair, and Alexandra Giorgi as plaintiffs, and European Asian Bank A.G. as defendant, was commenced on 29 November 1985. Alexandra Giorgi was subsequently made second defendant. The essence of those proceedings was that the various transactions between the plaintiffs and the bank had been compromised by an agreement to pay a certain sum and that there had been part performance of

against the first two applicants for monies outstanding under a that agreement. The bank in those proceedings cross-claimed

deed of loan dated 14 September 1981 as amended by a deed dated
16 March 1982.

Those proceedings were heard concurrently with proceedings No. 2326 of 1986, between the present plaintiffs and a Mr. Gleeson. The basis of these later proceedings was that if no authority was given to Mr. Gleeson by the bank as a former employee of the bank, then he was liable in damages to the plaintiffs for breach of warranty of authority.

In a written judgment of 17 November 1988, Cohen J. ordered that the both sets of proceedings be dismissed with costs. Mr. Kennedyls affidavit deposes to the fact that counsel for both parties attended upon Cohen J. in chambers on the same day and obtained a direction to the effect that the bank's cross-claim could be listed on three dayst notice for the entry of judgment in favour of the bank, his Honour being told that agreement would be sought as to the amount of the judgment.

No such judgment has been entered in respect of the cross-claim. However, it is relevant to note that very late in the proceedings before Cohen J., which were heard on 5, 6, 12, 13 and 14 September 1987, an application was made to amend the defence to the cross-claim. After submissions had been in progress for some hours and shortly before the luncheon adjournment on the final day, amendments were sought to be made to the defence to the cross-claim to raise matters of part

performance and matters relying on the Money Lenders Act 1916

(Qld.). For reasons which his Honour expressed on 22 September, the amendments were not allowed to be made.

Out of the history of this matter - aside from its length and the fact that there has already been quite detailed inquiry into a significant aspect of the dealings between the present applicant and some of the present respondents in the

Supreme Court of New South Wales - two important conclusions can

be drawn. First, what is sought to be relied on as a basis for relief here has already been the subject of an unsuccessful application to amend a defence to the cross-claim in the Supreme Court of New South Wales. Secondly, if judgment were to be granted on the cross-claim yet proceedings in the Federal Court allowed to continue, a judgment might be given by this court inconsistent with a judgment that had been given by the Supreme Court of New South Wales.

For the above reasons I am of the view that the proper
course is to simply transfer the Federal Court proceedings to the

Supreme Court of New South Wales. That is the order I make.

In respect of the costs of the motions for the stay or transfer, I reserve the costs of both motions to the Supreme Court of New South Wales.

r

I certify thnt tliis and ttie .> preceding

pages are a t ru? r,ol)%/ [of thc rcnsorls for

judgment here~ii of H I S l-lonmr

Mr. Justice Spender

Associate

Dated 3 / ? L U ~ M ~ / 1387 (3 Ot-P-