Merkle, H. v Volvo Australia Pty Ltd

C A T C H W O R D S

PRACPICE - s.86A Trade Practices Act - transfer of matter to State

Suoreme

Court

- matter

within Federal jurisdiction

p1;adings but Federal claims

appeared

doomed

to fail -

whether "a matter for determination in the proceedings"	-
whether in the interests of justice to transfer.

Trade Practices Act 1974 s.86A

Jurisdiction of Courts (Miscellaneous Amendments) Act 1987

Helen Merkle & Anor.

v. Volvo Australia Ptv. Ltd. & Anor.

Qld G9 of 1985

PINCUS J.

BRISBANE

2 OCTOBER 1987

IN THE FEDERAL COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT	REGISTRY	)	QLD G9 of 1985
GENERRG DIVISION	)

BEXWEZN:

HELEN MERKLE and CONSTANTINE MERKLE

Applicants

AND: VOLVO AUSTRALIA PTY. LTD.

First Respondent

AND:	SOUTH EASTERN TRUCKS PTY. LTD.

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	2 OCTOBER 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

All matters for

determlnation in this proceeding,

namely appllcation G9 of 1985 pending in thls Court, be transferred to the Supreme Court of Queensland;

2 .

Costs reserved on

10 September 1987 be taxed and

pald by the applicants;

3 .

The

costs

the

first

respondent

for

today's

application and appearances be taxed and paid by

the applicants and by the second respondent with

the intent that the first respondent

may

recover

those costs

against

either

party

but

that

between

the applicant and the second respondent

they be borne equally.

NOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT REGISTRY

)

QLD

1985

GENERAL DIVISION

)

HELEN MERKLE and CONSTANTINE

MERKLE

Applicants

AND: VOLVO AUSTRALIA FTY. LTD.

First Respondent

AND:

S O U T H EASTERN

TRUCKS PTY.

LTD.

Second Respondent

PINCUS J.

2 OCTOBER 1987

EX TEMPORE REASONS

FOR JUDGMENT

This is an application

under

5.86A

the

Trade

Practices Act 1974 mserted by the Jurlsdlction of Courts (Miscellaneous Amendments) Act 1987, which provision came lnto

force

1 September

1987.

The appllcants

seek to have

transferred to the Supreme Court of Queensland a matter sald to fall within the descriptlon in s.86A(l). The respondents to the application are also respondents in the principal proceedings and

they resist the application, saying both that there is no

jurisdiction to make an order

for transfer and that, if there is

such jurisdiction, it would be a wrong exercise of discretion to

make such

an order.

It is necessary to

deal with those contentions in some

detail, but

I should say as a preliminary comment that the case is

one of some complexity, which has proceeded rather slowly in this

Court and on which

considerable sum appears to have been

expended to date by the parties; the most practical course seems

to be to transfer it if that may lawfully be done, rather than to

let the time and costs expended be wasted.

The application was made on 15 March 1985, and on that

day a statement of claim was filed.

The application and statement

of claim disclose that the case concerns the sale of a rather

expensive vehicle which, according to the applicants' pleading,

was sold to the first applicant by the second respondent, South

Eastern Trucks Pty. Ltd. on 18

March 1982. It

is unnecessary to

set out further details of the allegatlons made in the statement

of claim, other than to say that it sets up a case of mlsleadlng

conduct

under

s.52 of

the

Trade

Practices

Act

the

characterlstics of

the vehicle, and also sets up clalms under

State law, that is, clalms for breaches of contract.

The second respondent, South Eastern Trucks Pty. Ltd.,

delivered Its defence on

November 1985, and it admitted

(in

substance) that it agreed to sell the vehicle in questlon, and

made a claim

on that contract.

Interlocutory steps of a rather elaborate kind have been

taken, as I have mentioned. Voluminous particulars of the claim

were sought and given. Mutual discovery was had and supplementary

discovery.

An order was obtained for trial on affidavit.

3 .

The applicants

have

filed

number

affidavits

intended for use at

the trial. They were slow in filing those

affidavits

and

did

not

comply

with

time

limits

set.

consequence of that, on 2 0 August 1987

I made

an order that

further affidavits be filed on behalf of the applicants after	3
September 1987. Counsel for the first respondent has expressed some anxiety about losing the benefit of that order and has

suggested that,

if a transfer is ordered,

should include a

condition intended to preserve the effect of that order.

It appears to me that, at least in general,

It would be

intrusion into the

~urisdiction

of the Supreme Court,

ordering a transfer, to attempt In such a fashion to control

that

Court's

disposltion

the

matter.

Section

86A(3)(a)

unequivocally requlres that,

where a

matter is

transferred to

another court "further proceedlnqs in the matter shall

directed by the other court". More generally, it appears to me

that It would be wrong to refuse an order of transfer for such a

reason as suggested by Mr. Sheahan, namely a reason relatlng to

the expected manner of disposltion of

the case by the Court to

which the transfer is made, because

should proceed on

the

assumption that that Court will dlspose

the matter In a lust

and proper way.

That

15,

I should not attempt to control Its

disposition of the matter directly or otherwise;

I have no power

to do that; nor should

I make any assumption that the disposltion

of the matter

in that Court will be unfair to any party.

The argument of counsel is based on the concession that,

as against the first respondent, the affidavits filed either make

no case or no substantial case under the Trade Practices Act.

case is made, however, against the second respondent and it is the

claim against the second respondent which has given rise to the

present difficulty.

On 16 July 1987,

over two years after the statement of

claim was delivered, counsel for the second respondent, South

Eastern Trucks Pty. Ltd., told me during

an lnterlocutory hearing

that documents had come to light that satisfied the second

respondent's advisers

that

the company dld not enter into the

contract mentioned in the pleadings, and that that contract

appeared to have been entered into by a partnership trading as

South Eastern Trucks.

have been informed that the second

respondent was incorporated before the contract was made, by the

prlnclpals

the

partnership,

but

unfortunately

for

the

applicants It 1s said

that

was

the

partnership,

not

the

company, which entered into

the contract.

I gather that that now

appears to be common ground.

Pursuant to leave

given,

amended

defence

was

delivered on 27 August

1987, In effect withdrawing

the admission

which had been made by the second respondent and settlng out that

there was no contract between that company and the appllcants.

is, of course, unfortunate that the matter came to light at such a

late stage but the second respondent no doubt would desire to take

advantage of the situation by getting rid of these proceedings

completely.

Were it not for the jurisdictional difficulty, namely

that pursuing the same claim against those individuals who, while

partners, made the contract, would not be possible in this court

were it not

for that problem,

such a

mistake as has been made

would be handled easily enough, no doubt, by this Court's simply

removing

the

letters

"Pty.

Ltd."

from

the

title

the

proceedings, and in

my experience such orders have been made to

meet similar situations.

Were it not for the jurisdictional difficulty, the error

which has been made would not cause any serious hold-up in the proceedings. But if, on application made, the proceedings were

amended so

as to make

clam against the natural persons in

respect of the mlsleadlng conduct alleged,

it would seem

clear

enough that the claim would be beyond the	~urisdiction	of this
Court.

It is for

that reason that counsel for the appllcants

has made thls applicatlon, and he has suggested that it would	be
conducive to a lust disposition of this dlspute between the

partles to transfer the

matter to the Supreme Court.

It has been argued on behalf of the respondents that

such a transfer would not

be within the )urisdictlon

this

Court, for the reason that the condition in s.86A(l)(b)

not

satisfied. It appears desirable to set out the whole of s.86A(1),

which says:

6 .

"Where -

(a) a civil pr

oceeding instituted

(whether

before

or after t

he commencement of

t his section) by

a person

other

than

the

inister

the

Commission is pending in the Federal Court; and

(b)

a matter for determination in the proceeding

arose under Division 1 or

1A of Part V,

the Federal Court may, subject to sub-section

( 2 1 ,

upon the application of a party or of the Federal or Territory the matter referred to in paragraph

(b) and may also transfer

to that court any other

matter for determination in

the proceeding."

It is argued on behalf

of the respondents that there

has not been,

and is not, any matter for determination in the proceeding under

Division 1 or 1A of Part

Mr. Morris for the applicants says that the

word "arose"

is to be contrasted with the present tense used in paragraph

(a)

of the sub-section and that

it is enough if, elther at the

tlme of

the transfer

at any earlier time, such a matter arose for

determination. At first

slght there is much to

be said for

Mr.

Morris' contention. However,

note that the terms of the

grant

of power to transfer assume that at least the matter mentloned In

para.(b) will be transferred; there

may or may not be transferred

with

any other matter for determination in the proceeding.

That is, the latter part of

subs.(l) seems to be drawn

the

assumption that there is, at the time of the transfer, still in

existence such

a matter as mentioned in (b).

It appears to me, however, unnecessary to resolve that

question

am satisfied

.that

on either construction of

para.(b) there is a matter

for determination of such a kind as to

satisfy that paragraph. The parties

ace, in substance, at one

that

that matter for determination

I s either very likely

certain to be resolved in

a particular way: but that does not mean

that the matter has ceased to exist.

therefore of the

opinion that there is jurisdiction to transfer.

A more difficult question is whether

is a proper

exercise of discretion to do so.

It is pointed out on behalf of

the

respondents

that

the

choice

not

simply

between

the

applicants starting again as

plaintiffs in the Supreme Court, on

the one hand, and having the matter transferred, on the other.

is said that if they

do not get their transfer, they simply may

not pursue the matter further, and the case may be

over.

It is also argued, by

Mr. Sheahan on behalf of the first

respondent,

and

the

argument

has

substance,

that

the whole

difficulty is no fault of the flrst respondent, and

that the first

respondent should not suffer as a result of the wrong admission

which was made by the second respondents. On the other hand, and

without attempting to predict

how

the Supreme Court would deal

with the matter, it seems possible that the case can proceed in the Supreme Court, without any more difficulty or cost than it

would have done if it had proceeded in this Court

- that is, than

it would have done if the error had never been made. Whether

the

Supreme Court would allow such

amendment as is referred to

above is, of

course,

entirely

matter

for that

Court.

Nevertheless, it is true that the course advocated by

Mr. Morris

on behalf of the applicants seems to

be the only way to avoid the

result that if the applicants wish to pursue the matter, all the

elaborate interlocutory steps taken must be repeated elsewhere.

To the ordinary person, such

an outcome might seem absurd.

Looking at the matter from

a lawyer's point of view, of

course, the second respondent is an

entity quite different from

South Eastern Trucks, which

is the business name

of the principals

of the second respondent; but

I am not obliged to Ignore the fact

that, commercially, precisely the same interests are involved.

am of the view that within

the meaning of s . 8 6 A ( 1 ) , it is in the

interests of justice	that the matter be determined by the Supreme
Court.

To	summarise, without pretending to complete accuracy,

what	has happened is simply this: a case has been brought into

this Court,

which the

parties

believed

wlthln

the

jurisdiction of the Court, and,

on the face of the pleadings, lt

is.

However, it appears that

the matter should not have pursued

in this Court, but in the Supreme Court. The error is correctable

and should in fairness be corrected. The whole matter on transfer

will be within the jurisdiction

of the Supreme Court, and

it will,

of course, have the right to deal

with

all questions of costs.

The costs of this application, however,

are to be dealt with here.

As to the costs reserved on

10 September 1987, that is,

the costs of the hearing on that date,

I order that the sald costs

be taxed and paid by the applicants. As to the costs of	today's
application, I make the following order: that the costs	of the

first respondent relating

to the application be taxed and paid by

9 .

the applicants and

by the second respondent,

to the intent that

the first respondent may recover those costs against either party,

but that as between the applicants and the second respondent	the
burden shall be borne equally.

[1987] FCA 532

2 Oct 1987