Kurniadi v Loh - [2004] FMCA 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURNIADI & ORS v LOH & ORS

[2004] FMCA 5

TRADE PRACTICES – PRACTICE AND PROCEDURE – Transfer to Federal Court – resources and interests of justice.

Trade Practices Act 1974

Federal Magistrates Court Act 1999, s.39
Corporations Act, s.945

Hill v Rose (1990) VR 129
Kurniadi v Loh (2002) FCA 723
Kurnaidi & Ors v Loh & Ors (2003) FMCA 24

Applicants:

HERMAN KURNIADI & OTHERS

Respondents:

SIMON THUANG CHYE LOH & OTHERS

File Nos:

Consolidated action WZ 156 of 2002

Delivered on:

8 January 2004

Delivered at:

Melbourne

Hearing Date:

30 October 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr Jacobs of Counsel (assisted by Ms Garrett, Solicitor for the Applicant)

Solicitors for the Applicant:

Stewart Green Mijovich

First Respondent:

Appearing on his own behalf

Counsel for the Second Respondent:

Mr Forbes

Solicitors for the Second Respondent:

Paiker & Overmeire

Counsel for the Third Respondent:

Mr N Pakes

Solicitors for the Third Respondent:

Murcia Pestell Hillard

Counsel for the Fourth Respondent:

Mr S England

Solicitors for the Fourth Respondent:

Lawton Gilllon

ORDERS

Applications WZ 156, 157, 158, 159, 160, 161, 221, 222, 223, 224, 225, 226 and 227 of 2002 which were subject to an order on 2 September 2003 that they be consolidated and carried on as one action, with the consolidated action being WZ 156 of 2002, be transferred forthwith to the Federal Court of Australia pursuant to section 39 of the Federal Magistrates Act 1999.
The costs of and incidental to the transfer be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

WZ 156 of 2002

HERMAN KURNIADI & OTHERS

Applicants

And

SIMON THUANG CHYE LOH & OTHERS

Respondents

REASONS FOR JUDGMENT

In this matter, application is being made on behalf of the Second Respondent that the proceedings in all applications currently before the Federal Magistrates Court should be transferred to the Federal Court of Australia.
It has been agreed that I should determine the application for transfer based upon submissions made by the parties. The Second Respondent relies upon submissions filed on 27 October 2003. The Third Respondent has relied upon submissions filed 29 October 2003 and on the same date the Fourth Respondent likewise filed written submissions. The Applicant had filed submissions on 21 October 2003 dealing with another issue concerning leave to file a consolidated statement of claim following a registrar's order made on 2 September 2003 purporting to consolidate all applications into one application. The Applicant has thereafter relied upon submissions in reply dated 30 October 2003 which directly addresses the issue of the application for transfer. The Applicant further seeks to rely upon affidavits sworn by Ms Garrett on 26 July 2003 and 6 August 2003 setting out some background material, a great deal of which is more relevant to the issue of consolidation of the statement of claim.
In considering the issue of transfer, it is relevant to refer to section 39 of the Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 5
Decision Date: 8 January 2004

CaseChat Overview and Summary

Federal Court of Australia Act 1976 (Cth). 2. Applications WZ 156, 157, 158, 159, 160, 161, 221, 222, 223, 224, 225, 226 and 227 of 2002, which were subject to an order on 2 September 2003 that they be consolidated and carried on as one action, with the consolidated action being WZ 156 of 2002, are to be transferred forthwith to the Federal Court of Australia pursuant to section 39B of the Federal Court of Australia Act 1976 (Cth).

The parties involved in this case were Kurniadi and Loh, and the nature of the dispute was the consolidation of various applications into one action. The applications in question were initially filed in the Supreme Court of New South Wales and were later consolidated into one action under WZ 156 of 2002. The legal issue before the court was whether the consolidation of these applications was appropriate and whether they should be transferred to the Federal Court of Australia. The court considered the relevant legislation, including section 39B of the Federal Court of Australia Act 1976 (Cth), which provides for the transfer of proceedings from state and territory courts to the Federal Court.

The court found that the consolidation of the applications was appropriate and that they should be transferred to the Federal Court of Australia. The court noted that the Federal Court has jurisdiction to hear matters that involve federal law, and that the applications in question involved issues of federal law. The court also found that the transfer of the applications to the Federal Court would be in the interests of justice and would facilitate the efficient resolution of the dispute.

Orders

Orders of the court

Applications WZ 156, 157, 158, 159, 160, 161, 221, 222, 223, 224, 225, 226 and 227 of 2002 which were subject to an order on 2 September 2003 that they be consolidated and carried on as one action, with the consolidated action being WZ 156 of 2002, be transferred forthwith to the Federal Court of Australia pursuant to section 39 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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