Lord Sim Pty Ltd v Dainford Ltd

[1985] FCA 475

Re: LORD SIM PTY LTD; LEON THOMAS WOOD and JUDITH ANNETTE WOOD
And: DAINFORD LIMITED; P.R.D. REALTY PTY LIMITED and SURFERS BEACHCOMBER
LIMITED
No. QLD G84 of 1985
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Practice - claims in Federal Court and Supreme Court - injunction to restrain latter - claim under s.52 of Trade Practices Act.

Federal Court - injunction against plaintiff in State Court restraining proceedings.

HEARING

BRISBANE
#DATE 3:9:1985

ORDER

1. The first respondent be restrained until further order from pursuing any application or taking any other step in action No. 752 of 1985 in the Supreme Court of Queensland.

2. The costs of this application will be costs in the proceedings.
   
   NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In this matter an application is made for an injunction to restrain the prosecution of an action in the Supreme Court. On 19 March 1985, the present respondent instituted proceedings by writ in the Supreme Court seeking specific performance of an agreement for sale of an interest in land. No statement of claim was delivered in those proceedings until 31 July 1985. In the meantime, on 26 July, solicitors for the present applicant had written to the solicitors for the present respondent, pointing out that it was proposed to institute proceedings in this Court concerning the same matter.

The delivery of the statement of claim on 31 July does not seem to have provoked any immediate response, and, in particular, it did not induce the present applicant to take any present either to defent in the Supreme Court, or to make an application to this Court. However, the applicant wrote on 20 August 1985 to the solicitors for the respondent pointing out that, in its view, this Court would be the most appropriate form for determination of the issued between the parties. On 29 August, relying upon the failure of the applicant to deliver a defence in the Supreme Court, the respondent filed a notice of motion in that Court seeking judgment in default of defence. That application is to be heard tomorrow. On the eve of its being heard, the applicant comes here seeking an injunction.

It is said with some justification by Mr Fleming on behalf of the respondent that the delay in seeking this relief is a significant factor which might induce me to refuse it. On the other hand, when viewed against the background of the history of the matter, the delay is not relly very great. It is not, for example, as long as the delay on the part of the respondent in delivering its statement of claim in the Supreme Court, that delay being a period of about four months. The reason for the delay in delivering the statement of claim in the Supreme Court was, at least in part, I assume, that the entry of appearance was not filed until June, but it could have been delivered with the writ.

Although it seems to me undesirable, in general, that this Court should intervene at such a late stage and so close to the proceedings in the Supreme being heard, the fact are not such as to make it proper to hold that the applicant's delay has caused any significant waste of time or costs. In addition, it is true, as Mr Clarke on behalf of the applicant has submitted, that some considerable time ago the present applicant made it clear that it proposed to bring proceedings here, as it has done. More importantly, it is clear that, before the delivery of the statement of claim in the Supreme Court, that intention was communicated. I therefore would not refuse the relief sought on the ground of delay.

The other point taken by Mr Fleming is that most of the relief sought in this Court could be obtained in the Supreme Court. There is, as he admits, an important exception to that, namely, that the applicant in this Court brings proceedings under s.52 of the Trade Practices Act alleging that there was made by the respondent a statement constituting misleading or deceptive conduct. It is not necessary to set out the details of that allegation but it is enough for me to say that the allegation is not, on the face of it, an absurd one. It is not such that I could, without any evidence, even make a guess as to the likelihood of its success. Experience suggests that it can be a significant advantage to one making such an allegation as that, tha he does not in this Court have to prove fraud. Although s.52 does not, in terms, abolish the rule under the general law that one cannot get damages for innocent misrepresentation, that is very close to its practical effect. A reason, then, why I propose to enjoin the respondent from proceeding further in the Supreme Court for the time being, is that if I do not do so, the applicant may not be able to obtain relief to which the law of this country will, perhaps, be held to entitle it. That there should be such jurisdictional problems is a matter that has been commented on frequently by others and I propose to say nothing more about it than that it seems to me unfortunate that the proceedings have been complicated by a jurisdictional clash.

In summary then, the reasons why I propose to enjoin the respondent from proceeding further in the Supreme Court are these: firstly, the proceedings in this Court, although commenced a little late, have not been accompanied by any undue delay to date, secondly, there is nothing to suggest that those proceedings are not commenced bona fide or that they are hopeless, thirdly, it may well be that the applicant will be successful here on facts on which it would have been unsuccessful in the Supreme Court; fourthly, neither any considerable quantity of costs nor any considerable length of time has been wasted; and fifthly, before the Supreme Court proceedings had gone very far, the aplicant foreshadowed its intention to bring these proceedings, as it has done. Those five considerations seem to me sufficient to outweigh the circumstance which is indeed troubling - that the application is made literally on the eve of the hearing of the application to the Supreme Court for judgment in default of defence.

The order will be that the first respondent be restrained until further order from pursuing any application or taking any other step in action No. 752 of 1985 in the Supreme Court of Queensland; the costs of this application will be costs in the proceedings.