Lawler v L.E. Stewart Invest (Banksia) Pty Limited

[1995] FCA 1183

1/83 45

JUDGMENT No. ........ .......,.. I .~........ .,

JN THE FEDERAL COURT OF AUSTRALIA ) 1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 61 of 1995

) 1

BETWEEN: DENISE LAWLER & ORS

Applicants

AND :	;
(BANKSIA) PTY JjIMITED ORS

Respondents

4 APRIL 1995

LOCKHART J.

This is a motion by the respondents for an order that the proceeding be removed to the District Court of New South Wales pursuant to S. 86A of the Trade Practices Act 1974; or in the alternative that the proceedings be cross-vested to either the Supreme Court of New South Wales (pursuant to the provision of the Jurisdiction of Courts (Cross-Vesting) Act 1987) or, as the motion has been treated though not expressed to be cross- vested, to the District Court of New South Wales (pursuant to

S. 10 of the Jurisdiction of Courts (Cross-Vesting) Act 1987).

The motion is opposed by the applicants. In the course of debate the following important point has arisen. The application seeks damages against the respondents pursuant to

S . 84 of the Trade Practices Act, and S. 68 of the Fair

Trading Act 1987 (NSW) (the equivalent NSW section). If damages were the only relief sought the matter would be one

which could be heard by the District Court of New South Wales within its monetary limit in the assessment of damages. But the application also seeks, in order 3, a recision of certain contracts, and in order 4, a repayment of the moneys said to be due under those contracts.

The statement of claim which has been filed by the applicants pleads the customary matters that lead to a case for damages under S. 82 of the T r a d e P r a c t i c e s A c t and the equivalent under the F a i r T r a d i n g Act (NSW) but it also pleads, in paragraphs 17 to 20, a case based on the recision of the relevant agreements by the applicants. There is a certain lack of comity between the application and the statement of claim, but reading as best one can at this stage of the case it does seem that the applicants are asserting a case for a recision of the relevant agreements and for the return of moneys payable or due thereunder.

There has been debate as to whether the District Court of New South Wales has jurisdiction to hear that element of the applicant's claim. The point is plainly open to argument and

I am not persuaded that it would be appropriate in all the

circumstances to have the applicants argue the matter of jurisdiction with respect to the their claim for recision in the District Court in circumstances where the jurisdiction is in a state of real doubt. It might place the applicants in jeopardy in their proceedings if pursued in that court, and I

think in those circumstances, and for that reason alone, it would be unfair to have the matter transferred to the District Court.

If it were not for that element of the applicant's claim I would have no doubt that it is appropriate to transfer to

the District Court but, as I say, in the circumstances I do not think it would be the right course to take. Accordingly,

I will not accede to the motion.

The costs of the motion shall be costs in the proceeding. So far as the future conduct of the matter is concerned, if

problems should arise with respect to the question of whether the proceeding is properly brought pursuant to 0.6 r.2(b) of this Court's Rules, those matters can be addressed in due course.

I certify that this and the

preceding two (2) pages are a true copy of the reasons for

j udgment herein of the

Honourable Justice Lockhart.

Dated:

Counsel for the Applicants	Ms K Smark
Solicitors for the Applicants :	Gisela Ramensky & CO

Counsel for the Respondents	:	Mr F G Lever
Solicitors for the Respondents:	Abbott Tout
Date of Hearing	4 April 1995
Date of Judgment	4 April 1995