Hore v Albury Radio Taxis Co-Op Society Ltd - [2002] NSWSC 1130

No judgment structure available for this case.

Reported Decision:
(2002) 56 NSWLR 210
(2003) ATPR 41-917

New South Wales

Supreme Court

CITATION: Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130 revised - 9/05/2003

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2912/00

HEARING DATE(S): 12 November 2002

JUDGMENT DATE: 6 December 2002

PARTIES :

Desmond Morton Hore (Plaintiff)
Albury Radio Taxis Co-Operative Society Limited (First Defendant)
Robert Raymond Gordon (Second Defendant)
Robert Roger Abbott (Third Defendant)
Joop Arend Muller (Fourth Defendant)
Malcolm John Charles Holland (Fifth Defendant)
Ronald William Wainwright (Sixth Defendant)
Kenneth Robert Wurtz (Seventh Defendant)
June Ann Liersch (Eighth Defendant)
Gavin John Livermore (Ninth Defendant)
Patrick John Moore (Tenth Defendant)

JUDGMENT OF: Campbell J

COUNSEL : M S White (Plaintiff)
J Baird (Defendant)

SOLICITORS: Kell Moore (Plaintiff)
Pigott Stinson Ratner Thom (Defendants)

CATCHWORDS: TRADE PRACTICES AND RELATED MATTERS - jurisdiction - jurisdiction of State court to determine matter arising under the Competition Code - STATUTES - Acts of Parliament - whether definition of "special federal matter" in Jurisdiction of Court (Cross-vesting) Act 1987 picks up definition of "special federal matter" in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as at 1987, or as amended from time to time - section 68 Interpretation Act 1987 (NSW) - construction to achieve purpose of legislation - constructing of schemes of more than one statute - construction of statutes as "always speaking" - PROCEDURE - courts and judges generally - transfer of proceeding under section 5 Jurisdiction of Courts (Cross-vesting) Act 1987 - factors relevant to "the interests of justice" - WORDS AND PHRASES - "having regard to"

LEGISLATION CITED: Abortion Act 1967
Acts Interpretation Act 1901 (Cth)
Competition Code
Competition Policy Reform Act 1995 (Cth)
Competition Policy Reform (NSW) Act 1995
Co-Operatives Act 1992 (NSW)
Copyright Act 1912
Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976
Federal Courts (Consequential Provisions) Act 2000
Federal Courts (State Jurisdiction) Act 1999
Interpretation Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Jurisdiction of Courts Legislation Amendment Act 2000 (Cth)
Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth)
Local Government Act 1919
Restraints of Trade Act 1976 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: Abdi v Release on Licence Board (1987) 10 NSWLR 294
Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14
Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119
Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350
Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 717
Evans v Marmont (1997) 42 NSWLR 70
Imperial Chemical Industries of Australia & New Zealand Limited v Commissioner of Taxation of the Commonwealth (1971) 46 ALJR 35
McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277
Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254
Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
R v Ireland [1998] AC 147
R v Police Board; ex parte Madden [1983] 1 WLR 447
R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Re Wakim; ex parte McNally (1999) 198 CLR 511
Remick & Co v The American Automobile Accessories Company
The Council of the Shire of Lake Macquarie v Aberdare County Council (1969) 123 CLR 327
Wallace v Stanford (1995) 37 NSWLR 1
Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77

DECISION: See paragraph 59

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

6 DECEMBER 2002

2912/00 DESMOND MORTON HORE v ALBURY RADIO TAXIS CO-OPERATIVE SOCIETY LIMITED

JUDGMENT

1 HIS HONOUR: Mr Hore is, now, the only plaintiff in this proceeding. He seeks an order that the proceeding be transferred to the Federal Court of Australia (Victorian District Registry) pursuant to sections 5(1) and/or 6 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). In the alternative, he seeks an order that this proceeding be stayed until the determination of proceeding number V410 of 2002 in the Federal Court of Australia (Victorian District Registry).

2 This proceeding is one which was commenced on 26 June 2000. On 4 July 2000 the same plaintiff began proceeding number V410 of 2002 in the Victoria Registry of the Federal Court of Australia. All the defendants in the present proceeding are also named as respondents in the Victorian proceeding, though the Victorian proceeding has one additional respondent.

The Allegations in the New South Wales Proceeding

3 The New South Wales proceeding originally had two plaintiffs. However, the second plaintiff died after the proceedings were begun, and his executors, by consent, discontinued their involvement in the proceeding.

4 The plaintiff alleges, in his statement of claim, that he operated a taxi business in Albury, and was a member of the first defendant. The other defendants are alleged to be members of the board of the first defendant, or members of the first defendant. The plaintiff complains about conduct which occurred over a period from June 1999 to February 2000. The plaintiff alleges that he agreed to sell his taxi licence, his taxi vehicle, and the shares he held in the first defendant, to Mr Mitchell (who was originally the second plaintiff). The first defendant is alleged to have first deferred making a decision about registration of the transfer of shares, and then refused to approve the transfer. The plaintiff alleges that:

(a) the refusal to approve the transfer was outside the powers of the first defendant;

(b) the refusal to register was a decision made for improper, collateral or ulterior purposes or motives, connected with keeping Mr Mitchell out of the taxi industry in Albury;

(c) the refusal to approve the transfer amounts to oppression, contrary to section 96(c) and 99(b) of the Co-Operatives Act 1992 (NSW)

(d) a particular rule of the first defendant, which says that the first defendant is entitled to refuse to register a transfer to a person of whom the first defendant does not approve, is void either at common law or under the Restraints of Trade Act 1976 (NSW) , or that the refusal to register the transfer was otherwise an unlawful restraint of trade;

(e) the first defendant provided various services to its members, that various of the defendants were in competition with each other, and that their acting together to refuse to approve the transfer of the shares involved a contravention of section 45(2)(a)(i) and/or section 45(2)(b)(i) of the Competition Code ;

(f) the first defendant had a substantial degree of power in the market of providing booking services, and certain other services, to the owners of taxi cab licences in Albury, that its refusal to consent to the transfer of the shares was taking advantage of that degree of power contrary to section 46 of the Competition Code ; and

Competition Code

The Allegations in the Federal Court

5 The proceeding in the Victorian District Registry of the Federal Court make exactly the same allegations, but also make some additional ones. As well, the Federal Court proceeding alleges that:

(a) the conduct, which the New South Wales proceedings allege amounted to a contravention of section 45 of the Competition Code , also amounts to a contravention of section 45 of the Trade Practices Act 1974 (Cth) ;

(b) the conduct, which the New South Wales proceedings allege to amount to a contravention of section 46 of the Competition Code , also amounts to a contravention of section 46 of the Trade Practices Act 1974 (Cth) ;

(c) the conduct amounts to a breach of contract;

(d) the conduct involves the tort of interference with contractual relations;

(e) liability attaches by reason of section 75B of the Trade Practices Act 1974 (Cth);

(f) liability attaches by reason of section 1094 of the Corporations Act 2001 (Cth) ;

(g) the conduct amounts to unconscionable conduct within the meaning of section 51AA, section 51AB, and section 51AC of the Trade Practices Act 1974 (Cth), and

Trade Practices Act 1974 (Cth)

6 While the Federal Court proceeding plead many causes of action, those causes of action all arise from the circumstances in which the first defendant came to refuse to transfer the plaintiff’s shares to Mr Mitchell. Counsel for the defendants accepts, it seems to me correctly, that if the present proceeding were to be transferred to the Victorian Registry of the Federal Court of Australia, all the causes of action pleaded in the present proceeding would be within either jurisdiction expressly granted by the Federal Parliament to the Federal Court, or within the accrued jurisdiction of that Court.

Relevant Provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

7 The Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) contains the following relevant provisions:

3(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

Jurisdiction of Courts (Cross-vesting) Act 1987

(1A) However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in subsection (2)(b), as the case may be.

(2) If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred:

Jurisdiction of Courts (Cross-vesting) Act 1987

8 Section 6(3) permits the New South Wales court to retain a “special federal matter” if there are special reasons for doing so, and after notice has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State. Neither party submits that this is a case where, if section 6(1) were applicable, there would be special reasons for retaining the matter in this Court. As well, no notice to the Attorneys-General has been given. Hence, it is not necessary for me to consider section 6(3) any further.

Does the New South Wales Proceeding Involve a “Special Federal Matter”?

9 The first question which arises is whether the New South Wales proceeding involves a “special federal matter” so that section 6 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) is attracted, by reason of the New South Wales proceeding including allegations of breach of sections 45 and 46 of the Competition Code. Consideration of this question will involve tracing some of the history of the introduction of the Competition Code, and of both the Federal and the State cross-vesting legislation.

10 When the Jurisdiction of Courts (Cross-vesting) Act 1987(NSW) was first introduced, it had the same definition of “special federal matter” as it now contains. It also contained a section 6 which, while it differed in wording from the present section 6, still required the transfer of “special federal matters” to the Federal Court unless there were special circumstances justifying a different course.

11 The Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth, when originally enacted, contained a definition of “special federal matter” as follows:

Trade Practices Act 1974

Administrative Decisions (Judicial Review) Act 1977

National Crime Authority Act 1984

Judiciary Act 1903

12 The Competition Policy Reform Act 1995(Cth) introduced a new part XIA of the Trade Practices Act 1974 (Cth). The Competition Policy Reform Act 1995(Cth) was explained by Senator Crowley, when making the second reading speech in the Senate on 29 March 1995, as being “the central element of a new national competition policy”. Senator Crowley explained that:

“… the origins of the Bill may be traced to 1991 when the Commonwealth and the States and Territories agreed to examine a national approach to competition policy. In 1992, the Government commissioned the National Competition Policy Review, chaired by Professor Fred Hilmer. The Hilmer Report was completed in August 1993. Since then the Government has been engaged in extensive consultations with State and Territory Governments on implementation of the Report …

The vision of the Hilmer Report was for a national competition policy in which the Commonwealth, States and Territories co-operated to ensure that universal and uniformly applied rules of market conduct apply to all market participants regardless of their form of ownership.”

13 Later in the second reading speech Senator Crowley referred specifically to the Competition Code saying:

Trade Practices Act

Trade Practices Act.

Trade Practices Act,

In order to ensure that there are no gaps in coverage, there will be overlap between Part IV and the Competition Code. Most businesses will be subject to both. However, it will not be possible to award penalties under both Part IV and the Competition Code in respect of the same conduct. There will only be one enforcement agency, the Australian Competition and Consumer Commission, and all enforcement action will be brought in the Federal Court. The draft intergovernmental Conduct Code Agreement indicates a commitment to maintain consistency between the prohibitions in Part IV and the prohibitions in the Competition Code.”

14 The new Part XIA of the Trade Practices Act, while it defined what counted as the text of the Competition Code, did not itself purport to require compliance by anyone with the text of that Competition Code. Clearly, Federal Parliament envisaged that it would be legislation of the States and Territories which would require compliance with the Competition Code, by the individual States and Territories enacting an “application law” which applied the Competition Code, either with or without modifications, as a law of that jurisdiction. However, consistently with Senator Crowley’s announced intention that all enforcement action concerning the Competition Code would be brought in the Federal Court, a new section 150D of the Trade Practices Act provided:

“The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law with respect to matters arising under the Competition Code.”

15 With a view to making it quite clear that the States and Territories were authorised by a law of the Commonwealth to confer jurisdiction on the Federal Court in this way, Schedule 2 of the Competition Policy Reform Act 1995 (Cth) added a new section 3(4) to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) reading:

Trade Practices Act 1974

16 As well, Schedule 2 of the Competition Policy Reform Act 1995 (made applicable by section 32 of that Act) amended the definition of “special federal matter” in the Commonwealth’s Jurisdiction of Courts (Cross-vesting) Act 1987 by inserting a new paragraph, as follows:

Trade Practices Act 1974

17 To give effect to the Competition Code, the New South Wales Parliament passed the Competition Policy Reform (NSW) Act 1995. Section 5 of that Act applied the Competition Code text, as in force for the time being, as a law of New South Wales. Section 6 made provision for future alterations, made by Commonwealth law, to the text of the Competition Code to apply in New South Wales only after a lag of two months (unless a proclamation appointed an earlier date), and not at all if a proclamation excluded that amendment from operation in the State.

18 Part 5 of that New South Wales Act (which ran from section 18 to section 33 inclusive) included the following:

“18 Object

The object of this Part is to help ensure that the Competition Codes of the participating jurisdictions are administered on a uniform basis, in the same way as if those Codes constituted a single law of the Commonwealth.

Division 3

21 Jurisdiction of Federal Court

Jurisdiction is conferred on the Federal Court of Australia with respect to all civil and criminal matters arising under the Competition Code of this jurisdiction.

22 Jurisdiction of courts of this jurisdiction

Subject to section 23, the courts of this jurisdiction do not have jurisdiction with respect to the matters referred to in section 21.

23 Exercise of jurisdiction under cross-vesting provisions

This Part does not affect the operation of any law of this jurisdiction relating to cross-vesting of jurisdiction.”

19 These sections were all consistent with the policy, which both Federal and State legislatures shared, that enforcement of the Competition Code would occur only in the Federal Court.

20 That policy was shown to be unworkable when the High Court delivered its decision, on 17 June 1999, in Re Wakim; ex parte McNally (1999) 198 CLR 511. That decision held, amongst other things, that a State legislature could not confer jurisdiction on the Federal Court.

21 In response to Wakim, the New South Wales Parliament passed the Federal Courts (State Jurisdiction) Act 1999. That Act retrospectively validated decisions of Federal Courts given in the purported exercise of jurisdiction purporting to have been conferred on the Federal Courts by a various State Acts. Relevantly for present purposes, though, section 15 amended the Competition Policy Reform (NSW) Act 1995 by omitting section 22. Section 17 provided:

“(1) Any provision of a relevant State law that purports to confer jurisdiction on a federal court is taken not to have that effect.

(2) Any provision of a law applied by a relevant State Act that excludes or limits the jurisdiction of any or all State courts is taken not to have that effect.

(3) This section does not operate:

(a) so as to prevent a federal court from exercising jurisdiction (such as accrued jurisdiction) in connection with a relevant State law to the extent to which, but for subsection (1), that court could validly do so, or

(b) so as to prevent a relevant State law from conferring jurisdiction on a federal court to the extent to which, but for subsection (1), a State Act could validly do so.

(4) Nothing in this section limits section 16.

relevant State law

22 The Explanatory Note to the Federal Courts (State Jurisdiction) Bill 1999 included an overview of the Bill, which referred to the decision in Wakim, and continued:

“This decision has implications not only for the cross-vesting schemes (where provision is made for the cross-vesting of jurisdiction in a wide range of cases …), but also for certain of the applied law schemes (where laws of another jurisdiction are applied as State law, and under which State jurisdiction has been conferred on the Federal Court).

The objects of this Bill are: …

(c) to enable State courts to deal with matters that arise under applied law schemes and that would otherwise have been dealt with by a federal court.”

23 The Explanatory Note explained clause 15 as follows:

Competition Policy Reform (NSW) Act 1995

24 The next year the New South Wales Parliament passed the Federal Courts (Consequential Provisions) Act 2000. That Act further amended the Competition Policy Reform (NSW) Act 1995 by omitting the whole of Part 5 division 3 (which, by that stage, consisted of sections 21 and 23.) As the Explanatory Note to the Bill for that Act stated, the object of this legislation included “to remove from State Acts any provisions that purport to confer jurisdiction on a Federal Court.”

25 The Federal Parliament also passed legislation aimed at ensuring that the enforcement of the Competition Code occurred in a manner consistent with what Wakim had held to be constitutionally permissible. The Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Schedule 1 clause 58 cut down the scope of paragraph (aa) of the definition of “special federal matter” in the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), so that thenceforth it read, “a matter arising under the Competition Code (as defined in section 150A of the Trade Practices Act 1974) of the Australian Capital Territory or the Northern Territory”.

26 From this history, it can be seen that when the New South Wales Parliament first enacted the Jurisdiction of Courts (Cross-vesting) Act 1987, and adopted a definition of “special federal matter” which incorporated by reference the definition of that term in the Commonwealth’s cross-vesting legislation, there was no mention in the Commonwealth’s definition of that term of any matter arising under the Competition Code. Later, the Commonwealth legislation’s definition of “special federal matter” was altered to include a matter arising under the Competition Code, and when the Competition Code was made applicable in New South Wales it was by legislation which contemplated that all enforcement of that Code would occur in the Federal Court. However, following the decision in Wakim, the New South Wales legislation adopting the Competition Code no longer contemplates that enforcement of the Competition Code will occur exclusively in the Federal Court, and neither does the definition of “special federal matter” in the Commonwealth’s cross-vesting legislation include a matter arising under the Competition Code of New South Wales.

27 Through all these changes, the wording of the definition of “special federal matter” in the New South Wales cross-vesting legislation has remained unchanged. However, in applying that wording, there is a question of whether it should be regarded as picking up the definition in the Federal cross-vesting legislation of “special federal matter” at the time that the New South Wales cross-vesting legislation was enacted in 1987, or whether the definition should be treated as one which has an ambulatory meaning, so that it expands, and contracts, over time, as the scope of the Federal definition of “special federal matter” expands, and contracts, over time. In my view, the latter view is the correct one. There are four strands of principle of statutory construction which lead to this view.

28 The first is section 68 of the Interpretation Act 1987 (NSW), which says:

(i) a Commonwealth Act, …”

29 Section 68 of the Interpretation Act 1987(NSW) is similar to section 10 of the Acts Interpretation Act 1901 (Cth) (which in turn was introduced in 1976, replacing a somewhat similar, but narrower, provision which had been contained in section 10A of the Acts Interpretation Act 1901 (Cth) – this history is traced by Gummow J in Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14, at 22-23.)

30 Prior to the enactment of the Interpretation Act 1987 there was no New South Wales legislation analogous to section 68 of the Interpretation Act 1987, or section 10 of the Acts Interpretation Act 1901 (Cth). In consequence, where a New South Wales statute A adopted the provisions of another statute B, statute B was adopted in the form that it took at the date of being adopted; any subsequent amendments to statute B were not incorporated by reference: Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535, at 546. Section 68 of the Interpretation Act 1987 has the effect of reversing that mode of construction.

31 However, one needs to go further than section 68 of the Interpretation Act 1987 to conclude that “special federal matter” in the New South Wales cross-vesting legislation should be given an ambulatory meaning, because section 5(2) Interpretation Act 1987 says, “This Act applies to an Act or instrument except insofar as the contrary intention appears in this Act or in the Act or instrument concerned.” There is nothing in section 5(2) which requires that a contrary intention which appears in the Act concerned should be one which appears in express words – it could equally “appear” as a matter of necessary implication in that Act. Hence, one needs to construe the New South Wales cross-vesting legislation to see whether there is anything in it which manifests an intention that the mode of construction which section 68 propounds, is not intended to apply. It is in carrying out that construction of the New South Wales cross-vesting legislation that the additional principles of construction come into play. (As to the need to find a contrary intention, before section 68 does not apply, see eg, Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203 at 223-224.)

32 The second principle of construction is that contained in section 33 of the Interpretation Act 1987, whereby

“… a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act …) shall be preferred to a construction that would not promote that purpose or object.”

33 The provisions of the Federal cross-vesting legislation and the cross-vesting legislation of the various States, taken together, have the effect of conferring on all State Supreme Courts in Australia, and on the Federal Court, all the jurisdiction which is exercisable by any State Supreme Court, or by the Federal Court. Notwithstanding that completely general conferral of jurisdiction, there are also provisions requiring, or permitting, a matter commenced in one court to be transferred to another court. The purpose or object of the New South Wales cross-vesting legislation is stated explicitly in the preamble to the Act, as follows:

“WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable:

(a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court,

(b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases, and

(c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.”

34 This contemplates that, apart from cross-vesting legislation, there will be some matters which are entirely within the jurisdiction of the Federal Court, and that the purpose of the legislation includes ensuring that such matters will continue to be actually heard by the Federal Court even though jurisdiction to hear them is conferred on State courts. Section 86 of the Trade Practices Act 1974 had, when originally enacted, conferred on the Federal Court jurisdiction in all matters arising under the Part of the Trade Practices Act concerned with enforcement, which was exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under section 75 of the Constitution. The Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) (an Act passed by Federal Parliament as part of the same package of legislation as the Federal cross-vesting legislation, and assented to on the same day as the Federal cross-vesting legislation) amended section 86 of the Trade Practices Act to permit courts of the States or Territories to exercise jurisdiction with respect to a matter arising under Division 1 or 1A of Part V of the Trade Practices Act. Given that the Federal Court is a statutory court, and has jurisdiction in such matters as Parliament confers on it (section 19 Federal Court of Australia Act 1976) it was completely predictable that the jurisdiction of the Federal Court, which the Federal Parliament wished it to exercise exclusively, might change in other ways at some time after 1987. It would not be a very workable scheme of legislation if the definition of “special federal matter” (and hence the type of matter which the State court was required, prima facie, to transfer to the Federal Court) remained frozen as at 1987.

35 Section 4 of the Federal cross-vesting legislation, as originally enacted, provided:

(1) Where—

(a) The Federal Court … has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) The Supreme Court of a State … would not, apart from this section, have jurisdiction with respect to that matter,

then—

(c) in the case of the Supreme Court of a State … - that court is invested with federal jurisdiction with respect to that matter

Conciliation and Arbitration Act 1904

Trade Practices Act 1974

36 Thus, section 4 of the Federal Act explicitly contemplated that jurisdiction would be conferred on State courts in all matters in which the Federal Court then had jurisdiction, or might in the future come to have jurisdiction. It is hardly to be expected that this indiscriminate conferral of jurisdiction by the Federal legislature would have occurred if the Federal legislature was not to have power, on an ongoing basis, to be able to decide that there were some matters which were special federal matters, and hence were expected to be transferred to the Federal Court if begun in some other Court.

37 Further, section 6 of the Federal cross-vesting legislation, as originally enacted, said:

“(1) Where a matter for determination in a proceeding that is pending in the Supreme Court of a State … is a special federal matter, that Supreme Court shall transfer the proceeding to the Federal Court unless that Supreme Court makes an order that the proceeding be determined by that Supreme Court.”

38 Section 6 of the Federal cross-vesting legislation would be interpreted so as to pick up, from time to time, any changes which there might be in the federal legislation’s definition of “special federal matter”. It is hardly to be expected that the obligation on a State court arising under section 6 of the State cross-vesting legislation would be different in scope to the obligation on the State court arising under section 6 of the Federal cross-vesting legislation. Giving effect to the purpose of the State cross-vesting legislation favours, it seems to me, conferring an ambulatory meaning on the definition of “special federal matter”.

39 The third relevant principle of construction is one whereby schemes of legislation consisting of more than one statute should be interpreted in a way which makes the overall scheme workable; “… it is proper for courts to endeavour to so construe interrelated statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation”: Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 717 at 722 per Kirby P. This principle applies when legislation of two different legislatures is intended to operate together: Abdi v Release on Licence Board (1987) 10 NSWLR 294. This strand of principle is probably just a particular application, to the circumstances of a scheme of legislation consisting of more than one statute, of the more general requirement that the purpose of the legislation be given effect to.

40 The fourth strand of principle is that, for some statutes, the way of giving effect to Parliament’s intention in enacting them is to regard those statutes as “always speaking”.

41 Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, paragraph 4.7, explain one reason behind this approach to statutory construction:

“an Act is to be deemed to be always speaking”,

42 The principle is also explained by Sir Rupert Cross, Statutory Interpretation, 3rd edition (1995), at 51-52, in a passage quoted by Lord Steyn in McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277 at 296:

“The somewhat quaint statement that a statute is ‘always speaking’ appears to have originated in Lord Thring’s exhortations to drafters concerning the use of the word ‘shall’: ‘An Act of Parliament should be deemed to be always speaking and therefore the present or past tense should be adopted, and “shall” should be sued as an imperative only, not as a future.’ But the proposition that an Act is always speaking is often taken to mean that a statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force. Such an approach takes account of the viewpoint of the ordinary legal interpreter of today, who expects to apply ordinary current meanings to legal texts, rather than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice that the latter approach is required.”

43 Examples of the application of this principle of statutory construction are given in the Appendix to this judgment. However, some caution must be applied in the exercise of this principle. There is still a question of construction which needs to be decided, about whether a particular expression ought to be construed, in the context of the particular legislation in which it occurs, as actually extending to some new state of affairs to which it might arguably extend. Thus, an exemption from stamp duty of a hiring arrangement relating to “a motion picture film” did not extend to exempt from stamp duty a hiring arrangement relating to a video cassette: Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77.

44 The “always speaking” approach to statutory construction is one which is consonant with the express provisions of section 68 of the Interpretation Act 1987. Indeed, sections 68 can be seen as a particular application of that principle, to the circumstance where one Act incorporates a reference to another Act.

45 There is no express provision in the New South Wales cross-vesting legislation which leads to the conclusion that section 68 of the Interpretation Act ought not apply to the definition of “special federal matter” in that legislation. Nor is there anything in the overall structure or purpose of the New South Wales cross-vesting legislation which leads to a conclusion that there is an intention implicit in the New South Wales cross-vesting legislation, that section 68 of the Interpretation Act should not apply to the definition of “special federal matter”. Indeed, the principles of construction to which I have referred all support the conclusion that section 68 of the Interpretation Act 1987 ought apply to the definition of “special federal matter” in the New South Wales cross-vesting legislation.

46 I conclude that the fact that the Supreme Court proceeding makes a claim under the Competition Code does not result in it being a special federal matter. Nor is there any other claim made in the Supreme Court proceeding which amounts to a special federal matter. It follows that section 6 of the New South Wales cross-vesting legislation does not require that the proceeding be transferred to the Federal Court inVictoria.

Discretionary Transfer Under Section 5

47 The defendants oppose any discretionary transfer of this proceeding under section 5 of the New South Wales cross-vesting Act. They have instructed Sydney solicitors to act for them in this proceeding. Those solicitors have been involved in the matter since July 2000, and have obtained advice from Sydney counsel. The defendants have incurred approximately $25,000 of legal fees to their Sydney solicitors and counsel. It was only after the New South Wales proceeding had been on foot for of the order of two years that the plaintiff commenced the Federal Court proceeding. The defendants submit that if the proceeding were to be transferred to the Federal Court in Victoria, or stayed so that the Federal Court proceeding became the active proceeding, it would be necessary to duplicate much of the work which has already been done. The defendants say that if this proceeding was to be transferred it would then become more efficient for them to instruct Melbourne solicitors and counsel, rather than to continue to instruct Sydney solicitors and counsel. The plaintiff, for his part, submits that the defendants are exaggerating the extent to which preparation will be wasted if the proceedings are transferred to the Federal Court. The plaintiff’s counsel did not attempt to put on evidence, or cross-examine, to lay an evidentiary foundation for that submission.

48 Section 5(1)(b)(ii) of the New South Wales cross-vesting legislation (quoted in paragraph 7 above) requires this Court to have regard to the three matters, listed in sub-paragraphs (A), (B) and (C) in deciding whether it is more appropriate that these proceedings be determined by the Federal Court. A statutory requirement to “have regard to” certain matters requires those matters to be given weight as a fundamental element in decision-making: R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254, at 260; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 145; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623).

49 There is also authority, though, that a statutory direction to “have regard to” certain matters in reaching a decision does not always and necessarily, require that those matters be the basis of the decision – R v Police Board; ex parte Madden [1983] 1 WLR 447, at 471 - or the only matters which are taken into account - see cases collected by Handley JA in Wallace v Stanford (1995) 37 NSWLR 1, at 19–20, but cf Evans v Marmont (1997) 42 NSWLR 70 at 79–80, 85, 95–96, 97–98. In the present case all of the matters it has been submitted I should take into account fall under the heading “the interests of justice”, so it is not necessary to decide whether it is possible to take into account matters beyond those enumerated in sub-paragraphs (A), (B) and (C) in making a decision for the purpose of section 5(1)(b)(ii).

50 In applying section 5(1)(b)(ii), the “relevant proceeding” is this Supreme Court proceeding.

51 Considering first sub-paragraph (A), there is nothing alleged in the Supreme Court proceeding which (apart from any cross-vesting legislation, and apart from any accrued jurisdiction of the Federal Court) would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court. In particular, for the reasons which I have earlier given, the allegations of breach of sections of the Competition Code are within the jurisdiction of this Court. Thus, no reason for transferring the proceeding arises under sub-paragraph (A).

52 Considering sub-paragraph (B), it might possibly be the case that the Supreme Court proceeding is one which involves questions as to the application or interpretation of a law of the Commonwealth. This element of sub-paragraph (B) might be satisfied because of the fact that the Competition Policy Reform (NSW) Act 1995 adopts the text of the Competition Code, which is itself part of the Trade Practices Act 1974 of the Commonwealth. However, regardless of whether that is right, the element of sub-paragraph (B) which requires that matter to be not within the jurisdiction of the Supreme Court apart from the New South Wales cross-vesting Act, and any other cross-vesting Act, is not satisfied, as matters arising under the Competition Code have, since the enactment of the Federal Courts (State Jurisdiction) Act 1999, been within the jurisdiction of this Court. No reason to transfer the proceeding arises under paragraph (B).

53 I now turn to paragraph (C) in section 5(1)(b)(ii). It would be strongly opposed to the interests of justice for both the proceeding in this Court, and the proceeding in the Federal Court, to remain active. The Federal Court proceeding contains matters arising under Part IV of the Trade Practices Act 1974, and thus contain a “special federal matter”. While there is nothing in the Commonwealth’s cross-vesting legislation which actually prohibits the Federal Court from transferring, to a State court, proceedings which contain a special federal matter, there is a clear policy in the Commonwealth’s cross-vesting legislation, articulated most clearly in section 6(6)(a), where the legislation refers, in the context of circumstances where a State court might decide to not transfer litigation which contained a special federal matter, to “the general rule that special federal matters should be heard by the Federal Court …”, which would favour the Federal Court declining to transfer the Federal Court proceeding to this Court. I say this even though, in the context of the present case, the content of the allegation which is made, in the Federal Court proceeding, of a breach of sections 45 and 46 of the Trade Practices Act is no different in substance to the content of the allegations which are made, in both the Federal Court proceeding, and in the proceeding in this Court, of a breach of sections 45 and 46 of the Competition Code. It is likely that the Federal Court would decline to transfer the Federal Court proceeding to this Court, if asked. Further, when the Federal Court proceeding contains a more extensive range of allegations than does the Supreme Court proceeding, and is brought against an additional respondent, it seems unlikely that the Federal Court would stay the Federal Court proceeding with a view to ensuring that the Supreme Court proceeding was the only active one.

54 There seem to be no considerations dependent upon the location of parties and witnesses which favour Sydney rather than Melbourne as a forum, or vice versa. All the defendants who are natural persons live in the Albury area, so there would be no substantial difference in the convenience, for them, of a trial being in Sydney rather than Melbourne, or vice versa. Neither party put on evidence going to the convenience of any witnesses who were not parties.

55 Apart from the matter of the defendants possibly having been put to unnecessary expense through the plaintiff having started proceedings in this Court, and then decided he preferred to litigate in the Federal Court in Victoria, the interests of justice seem to me to favour the transfer of this proceeding to the Federal Court.

56 The position concerning the possibility of there being wasted expense for the defendants, as a result of the transfer occurring, is not enough, in my view, to lead to a different result. If the proceeding is transferred to the Federal Court, the Federal Court will have full power to deal with the costs of the transferred proceeding. Section 12 of the New South Wales cross-vesting legislation says:

“Where a proceeding is transferred or removed to a court, that court may make an order as to costs that relate to the conduct of the proceeding before the transfer or removal if those costs have not already been dealt with by another court.”

57 Thus, if there are costs thrown away in consequence of the transfer, it will be open to the Federal Court, if it thinks appropriate, to make a special order requiring the plaintiff to pay those costs thrown away. It would, of course, be entirely a matter for the Federal Court as to whether such an order should be made, and it might possibly depend on factors like whether, as the proceeding in fact turned out, there was any significant wastage of costs as a consequence of the transfer. When the position of the defendants concerning costs can be protected in this fashion, and other factors relevant to whether the proceeding should be transferred either favour a transfer or are neutral, I am of the view that it is more appropriate that the present proceeding be determined by the Federal Court.

58 The need for the present application was brought about essentially because the plaintiff changed his mind about where he wanted to litigate, and with respect to what causes of action. In these circumstances it is appropriate for the plaintiff to pay the defendants’ costs of the motion seeking transfer of the proceeding.

Orders

59 I order:

1. These proceedings be transferred to the Federal Court, Victoria Registry.

Copyright Act 1912

“copyright”

“performance”

“vehicle”

“does anything”

“performance”

“acoustic representation”

Remick & Co v The American Automobile Accessories Company

Chappell & Co Ltd v Associated Radio Co of Australia Ltd

Local Government Act

1919

“all powers and duties under sections 416 to 419 of the Act relating to the supply of gas and the supply and installation of gas fittings and appliances.”

Local Government Act

“gas”

Local Government Act

“gas”

The Council of the Shire of Lake Macquarie v Aberdare County Council

“mining operations”

Imperial Chemical Industries of Australia & New Zealand Limited v Commissioner of Taxation of the Commonwealth

The Commissioner of Taxation of the Commonwealth of Australia v ICI Australia Limited

Abortion Act 1967

“pregnancy is terminated by a registered medical practitioner”

“terminated by a registered medical practitioner”

“What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?”

“terminated by a registered medical practitioner”

Royal College of Nursing of the United Kingdom v Department of Health and Social Security

“grievous bodily harm”

R v Ireland

“grievous bodily harm”

“as if one were interpreting it the day after it was passed:” ”The

Longford

The Longford

“action”

“was not one of His Majesty’s Courts of Law:”

”An Act of Parliament should be deemed to be always speaking:” Practical Legislation

Cross, Statutory Interpretation

Pearce and Geddes, Statutory Interpretation in Australia

“always speaking”

McCartan Turkington Breen (a firm) v Times Newspapers Ltd

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Last Modified: 11/28/2007

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Citations

Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130

Most Recent Citation

Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19

Cases Citing This Decision

26

Forsyth v Deputy Commissioner of Taxation [2007] HCA 8

Trust Company of Australia Ltd v Commissioner of State Revenue [2003] HCA 23

Telstra Corporation Ltd v Australasian Performing Right Association Ltd [1997] HCA 41

Cases Cited

13

Statutory Material Cited

19

Cole v Whitfield [1988] HCA 18

Austereo Ltd v Trade Practices Commission [1993] FCA 429

CITATION:	Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130 revised - 9/05/2003
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2912/00
HEARING DATE(S):	12 November 2002
JUDGMENT DATE:	6 December 2002
PARTIES :	Desmond Morton Hore (Plaintiff) Albury Radio Taxis Co-Operative Society Limited (First Defendant) Robert Raymond Gordon (Second Defendant) Robert Roger Abbott (Third Defendant) Joop Arend Muller (Fourth Defendant) Malcolm John Charles Holland (Fifth Defendant) Ronald William Wainwright (Sixth Defendant) Kenneth Robert Wurtz (Seventh Defendant) June Ann Liersch (Eighth Defendant) Gavin John Livermore (Ninth Defendant) Patrick John Moore (Tenth Defendant)
JUDGMENT OF:	Campbell J

COUNSEL :	M S White (Plaintiff) J Baird (Defendant)
SOLICITORS:	Kell Moore (Plaintiff) Pigott Stinson Ratner Thom (Defendants)
CATCHWORDS:	TRADE PRACTICES AND RELATED MATTERS - jurisdiction - jurisdiction of State court to determine matter arising under the Competition Code - STATUTES - Acts of Parliament - whether definition of "special federal matter" in Jurisdiction of Court (Cross-vesting) Act 1987 picks up definition of "special federal matter" in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as at 1987, or as amended from time to time - section 68 Interpretation Act 1987 (NSW) - construction to achieve purpose of legislation - constructing of schemes of more than one statute - construction of statutes as "always speaking" - PROCEDURE - courts and judges generally - transfer of proceeding under section 5 Jurisdiction of Courts (Cross-vesting) Act 1987 - factors relevant to "the interests of justice" - WORDS AND PHRASES - "having regard to"
LEGISLATION CITED:	Abortion Act 1967 Acts Interpretation Act 1901 (Cth) Competition Code Competition Policy Reform Act 1995 (Cth) Competition Policy Reform (NSW) Act 1995 Co-Operatives Act 1992 (NSW) Copyright Act 1912 Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 Federal Courts (Consequential Provisions) Act 2000 Federal Courts (State Jurisdiction) Act 1999 Interpretation Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) Local Government Act 1919 Restraints of Trade Act 1976 (NSW) Trade Practices Act 1974 (Cth)
CASES CITED:	Abdi v Release on Licence Board (1987) 10 NSWLR 294 Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14 Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350 Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 717 Evans v Marmont (1997) 42 NSWLR 70 Imperial Chemical Industries of Australia & New Zealand Limited v Commissioner of Taxation of the Commonwealth (1971) 46 ALJR 35 McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 R v Ireland [1998] AC 147 R v Police Board; ex parte Madden [1983] 1 WLR 447 R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Re Wakim; ex parte McNally (1999) 198 CLR 511 Remick & Co v The American Automobile Accessories Company The Council of the Shire of Lake Macquarie v Aberdare County Council (1969) 123 CLR 327 Wallace v Stanford (1995) 37 NSWLR 1 Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77
DECISION:	See paragraph 59