Hahndorf Golf Club Inc v John Nitschke Nominees Pty Ltd No. Scciv-03-737

[2003] SASC 280

HAHNDORF GOLF CLUB INCORPORATED V JOHN NITSCHKE NOMINEES PTY LTD
[2003] SASC 280

Civil (ex tempore)

1. OLSSON AUJ      At the outset I think it must be said that the present proceedings have gone forward in a somewhat unusual fashion.  They were commenced initially by what is loosely described as a construction summons, but as the matter developed, it, in practical terms, extended far beyond that type of proceeding.  Perry J who had the interlocutory oversight of the matter, for example, ruled that points of claim and defence were to be lodged in relation to a rectification remedy sought.  Generally speaking, the proceedings have developed as partly based upon assertions in affidavits and partly upon pleadings.  I make that point because the primary issues between the parties are really to be derived in this case, from a consideration of Exhibit LTW18 to the initial affidavit of Dr Trafford-Walker sworn on 13 June 2003, which sets out questions reserved for the consideration of the court as perhaps the best definition of what were originally the issues identified by the plaintiff.

2. Without going into detail as to those, paragraph 7 is the important provision for present purposes. Paragraph 7 raises the questions as to whether, in the circumstances, the terms of clause 4 of the relevant encumbrance were unenforceable as a restraint on alienation, were an unreasonable restraint of trade and contravened the provisions of s 45 of the Trade Practices Act 1974 (Cth).

3. When the matter was called on this morning Mr WJN Wells of senior counsel for the plaintiff, immediately made it clear that, for reasons that he indicated, it was not the intention of the plaintiff to seek to litigate the questions of unreasonable common law restraint of trade or any suggested contravention of the provisions of s 45 of the Trade Practices Act 1974 (Cth) within the ambit of these proceedings. In other words, leaving aside other issues in the proceedings, paragraph 7 was to be confined to the issue expressed in sub-paragraph (a), that is, whether, in the circumstances, the terms of clause 4 of the encumbrance in question are unenforceable as a restraint on alienation. In my view, so that the position may be put beyond doubt, it is necessary to eliminate from the statement of the questions reserved for the court, those set out in paragraphs 7(b) and 7(c). Accordingly, I make an order striking out those two sub-paragraphs.

4. Against that background, the defendant has sought alternative relief. First there was an application that the proceedings be transferred to the Federal Court pursuant to s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA).

5. Alternatively the defendant asked for an appropriate form of order to deal with what he identified as being an abuse of the process of the court. The defence argument was that it was an abuse of the process of the court to seek to proceed in the way in which the plaintiff here seeks to proceed, by not prosecuting the issues as to common law restraint of trade or under s 45 of the Trade Practices Act 1974 (Cth), and purporting to reserve rights in relation to those matters to be dealt with in some other context at a later time. He put it that the plaintiff should be required to elect at this stage not to proceed on those other issues, as to which Mr Wells QC says the plaintiff reserves its rights.

6. I deal first of all with the issue of the need for a cross-vesting order in the circumstances.  There is no question but that, if it can fairly be said that, in these proceedings, there is a matter for determination which comes within the aegis of a defined “special federal matter”, then, unless the Court finds that there are special reasons for not doing so, the matter must be cross-vested to the Federal Court.  It seems to me that the short answer to that argument is that, in the circumstances as they have developed, there is, in fact, no matter for determination which is a special federal matter.

7. The plaintiff has not sought to proceed to prosecute what might otherwise be an issue that could be categorised in that way, and I have in fact made an order striking out sub-paragraphs (b) and (c) in Exhibit LTW 18 which refer to anything which could constitute a special federal matter.  Even without that striking out (which seems to me to be desirable so that there is no question about the scope of the present proceedings) the fact that relevant issues are not sought to be prosecuted indicates that there is no live issue that is, indeed, a special federal matter.  In that regard I refer to the point made by McHugh J in the Wakim case[1], that what is really in question is what is the scope of the controversy between the parties.  The controversy between the parties in the proceedings, as they are now sought to be prosecuted, specifically excludes any consideration of a special federal matter.  I therefore conclude that there is no basis upon which there ought to be a cross-vesting order made pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA).

   [1] Re Wakim; Ex Parte McNally (1999) 198 CLR 511 at 563

8. As to the issue of abuse of process and the requirement that I should call upon the plaintiff to elect, there are two points to be made.  The first is that the particular matters in question having been struck out of the pleadings, such as they are in these proceedings, then that is an end to those matters for present purposes.  The second point is that it seems to me that there is no basis upon which I can properly call for an election of the type in question.  The whole issue really comes back to the assertion that by virtue of, amongst other things, the ‘Anshun’ principle[2], it would be an abuse of process for the plaintiff to go forward in these proceedings without canvassing all aspects that reasonably arise on the facts of the situation.

   [2] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 519

9. That may well be an argument which has considerable substance, but that is for another day, as I think is amply illustrated by the Woke Wine case[3] to which my attention was referred.  The abuse of process, if there be one, arises only when a plaintiff seeks to litigate a particular issue at a point in time after there has already been litigation ranging over the relevant facts, and in circumstances in which the particular issue ought fairly to have been dealt with as part and parcel of the initial litigation.  So that, if there is an abuse of process that can be demonstrated, it will be demonstrated as and when the plaintiff in this case, seeks to raise an issue by way of further litigation that ought fairly to have been dealt with within the scope of the present proceedings.

   [3] Woke Wine Industries v Van Shake Organic Soils (2002) SASC 176

10. I do not think that there is any basis upon which, at this point in time, I can properly call upon the plaintiff to make the election in question.  Nor is there any abuse of process situation that has developed which would warrant any order beyond that already made, that is to say, an order that renders it clear and completely apparent as to what is the scope of these proceedings.  That having occurred, it seems to me the proceedings can fairly go forward in the form that is now represented by the issues set out in Exhibit LTW18, subject to the effect of the striking out order.

11. I therefore dismiss the application made, or perhaps technically, the applications that have been made.