Michael S.S. v Monitronix Ltd

[1995] FCA 737

CATCHWORDS
Courts and Judges - Jurisdiction - Cross-vesting - whether proceeding must be transferred to the Supreme Court of Western Australia.

Jurisdiction of Courts (Cross-vesting) Act 1987 sub-s.5(4)
Trade Practices Act 1974 s.52
Vexatious Proceedings Restriction Act 1930 (W.A.)

SHAWKY SHAFEEK MICHAEL AND JOYCE MARY MICHAEL V. MONITRONIX LIMITED (IN LIQUIDATION) AND BERNARD WILLIAM RIDGEWAY AND DAVID CHRISTOPHER NICOLSON AND GRAHAM CHARLES SYLVESTER
WAG126 OF 1989

LEE J.
PERTH
26 May 1995

IN THE FEDERAL COURT )    LIMITED DISTRIBUTION

OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG126 OF 1989

B E T W E E N:           SHAWKY SHAFEEK MICHAEL

JOYCE MARY MICHAEL

Applicants

and

MONITRONIX LIMITED

(In Liquidation)

First Respondent

and

BERNARD WILLIAM RIDGEWAY

DAVID CHRISTOPHER NICOLSON

GRAHAM CHARLES SYLVESTER

Second Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:    LEE J.

DATE OF ORDER:      26 May 1995

WHERE MADE:           PERTH

THE COURT ORDERS THAT:

1. The matter be transferred to the West Australian Supreme Court pursuant to Section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987.

1. Costs of the application be in the cause.

1. Any reserved costs be determined by the Supreme Court.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )    LIMITED DISTRIBUTION

OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG126 OF 1989

B E T W E E N:           SHAWKY SHAFEEK MICHAEL

JOYCE MARY MICHAEL

Applicants

and

MONITRONIX LIMITED

(In Liquidation)

First Respondent

and

BERNARD WILLIAM RIDGEWAY

DAVID CHRISTOPHER NICOLSON

GRAHAM CHARLES SYLVESTER

Second Respondents

CORAM:    LEE J.
DATE :    26 May 1995
PLACE:    PERTH

REASONS FOR JUDGMENT

This is an application pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 ("the Act") to transfer to the Supreme Court of W.A. a proceeding commenced in this Court on the 25 October 1989. By sub-s.5(4) of the Act where a proceeding pending in this Court is related to another proceeding pending in the Supreme Court of a State and, inter alia, it is more appropriate, or it is in the interests of justice that the proceeding in this Court be determined by the Supreme Court, the proceeding must be transferred to the Supreme Court.
By a proceeding pending in this Court the applicants seek damages and other relief in respect of employment contracts said to have been made between Dr Michael and the first respondent and compensation for loss caused by conduct of the first and second respondents which is said to have been misleading or deceptive and in contravention of s.52 of the Trade Practices Act 1974. The proceeding was stayed by an order of this Court on 23 November 1989. Applications to remove the stay have been unsuccessful, most recently on 13 December 1994. The ground for the stay is that the proceeding arises out of substantially the same set of facts on which several proceedings pending in the Supreme Court are based, namely, the employment and subsequent dismissal of Dr Michael from his position as Managing Director of the first respondent. On the hearing of this application the Court was informed that one of the proceedings pending in the Supreme Court has been settled with the assistance of a mediation process.

The Court was also informed that an application has been commenced in the Supreme Court by the Attorney-General of the State pursuant to the Vexatious Proceedings Restriction Act 1930 (W.A.), seeking an order declaring the applicants to be vexatious litigants.
         The natural person respondents, who made submissions in opposition to the application, expressed concern that the transfer of the proceeding to the Supreme Court would permit the applicants to litigate causes of action that had been struck-out in the other proceedings pending in that Court.  I am not in a position to determine whether there is any substance in that submission but it may be said at once that the transfer of the proceeding to the Supreme Court will enable that Court to make whatever orders are appropriate in the circumstances to control the litigation.

It is undesirable for the proper administration of justice that a proceeding pending in this Court be stayed indefinitely while issues in a related proceeding in the Supreme Court are determined by that Court.  The better course is that the stayed proceeding and the related proceeding be placed under the control and management of the one court. Furthermore, in order that the Supreme Court may fully determine all issues that may arise under the Attorney General's application it is important that the Supreme Court be able to assess the issues in, and substance of, the proceeding now pending in this Court.

Having considered these matters I am satisfied that it is either more appropriate, or in the interests of justice,
that the Supreme Court determine the proceeding pending in this Court.

Accordingly the proceeding must be transferred to the Supreme Court and I make that order.

The applicant seeks a further order that the transferred proceeding be consolidated with the related proceedings pending in the Supreme Court.  Whether the transferred proceeding is to be subject to such an order is for the Supreme Court to determine and not this Court.  The only order made will be that the proceeding be transferred and that any costs previously reserved, if any, be determined by the Supreme Court.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
              Date:

APPEARANCES

Mr S S Michael and
Mrs J M Michael appeared in person

Mr B W Ridgeway and
Mr D L Nicolson appeared in person

Date of Hearing  : 26 May 1995
Date of Judgment : 26 May 1995