Parsons v Martin

[1984] FCA 408

Re: ROBERT MARK PILLIFEANT and JEANETTE MARIE PILLIFEANT
And: COLEMMA PTY LTD
No. QLD G95 of 1984
Federal Judiciary
(1985) ATPR para 40 - 508

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.

CATCHWORDS

Federal Judiciary - application to stay Federal Court proceedings pending resolution of Supreme Court proceedings between same parties - certificate of readiness for trial executed by both parties in Supreme Court matter - substantial indentity of issues - factors to be considered - stay of Federal Court proceedings granted.

Trade Practices Act 1974 ss.52, 82, 87.

HEARING

BRISBANE

#DATE 30:10:1984

ORDER

1. That any further proceedings on this application be stayed pending the determination of the proceedings constituted by Supreme Court Writ No. 2243 of 1983.

2. Each party have liberty to apply.

3. The applicants pay the respondent's costs of and incidental to this application, including reserved costs, to be taxed.

JUDGE1

These proceedings were commenced by an application to the Federal Court dated 6 September 1984. The applicants in that application seek, essentially, a declaration that a certain contract is void, alternatively, a declaration that the contract is rescinded, return of the deposit, and damages pursuant to s.82, or alternatively s.87, of the Trade Practices Act 1974 ("the Act").

1. The respondents, after entering an appearance, by notice of motion seek orders that any further proceedings in this application be stayed pending the determination of the proceedings constituted by Supreme Court writ number 2243 of 1983 and costs.

2. This application raises a common question, caused by the fact that the jurisdiction of the Federal Court in respect of s.52 conduct under the Act is exclusive, and in relation to the general principles that are involved where there is a conflict of jurisdiction involving that matter. The primary principles are set out in the judgment of the High Court in Stack v. Coast Securities (No. 9) Pty Ltd (1983) 57 ALJR 731. At p 738 there is discussion of the principles and the Chief Justice said:
   
   

"... It is a defect in the judicial system that in some cases duplication of proceedings is inescapable, and a multiplication of applications whose sole purpose is to resolve jurisdictional conflicts is highly likely. The only effective remedy for this overlap of jurisdiction, which tends to place two superior courts in unbecoming conflict, is to amend the Trade Practices Act so as to provide that the jurisdiction of the Federal Court, at least in actions and other proceedings under Pt VI which relate to an alleged contravention of a provision of Pt V, should no longer be exclusive. ..."

I note that that has not, as yet, been done.

1. In the joint judgment of their Honours Mason, Brennan and Deane JJ, it is made clear that the general rule is that the court which has the capacity to solve all questions in dispute ought primarily to be the court of trial. I am quite conscious of those principles. Nonetheless, the justice of any particular application has to be determined in the circumstances as they obtain at the time of the application. To put the parties out of their misery, I will indicate that I will stay the proceedings in this Court, and I will shortly state why.

2. The writ of summons in the Supreme Court of Queensland was dated 6 May 1983. All pleadings have been delivered in the Supreme Court action. Affidavits of documents of each party have been completed and mutual inspection of documents has taken place; interrogatories have been delivered and have been answered. On 24 July 1984, a certificate of readiness for trial was executed by the present applicants' solicitors. All entry of trial documents have been filed, and the matter is awaiting appointment to the call-over and allocation of a trial date, so that everything that can possibly be done in respect of the resolution of the issues in the Supreme Court has been done, bar the actual trial of the matter.

3. Proceedings here were not, it appears, mentioned by the present applicants until a letter dated 5 September 1984, which is before me as exhibit "M" to the affidavit of Mr Hickey. That letter, quite shortly, says:
   
   

"We refer to previous correspondence in this matter and advise that we have instructions to take proceedings in the Federal Court of Australia. The application and Statement of Claim have been prepared and will be served shortly. We would ask that you advise, after receipt of your client's instructions, as soon as possible whether your client agrees that the Federal Court now has exclusive jurisdiction in the matter and will agree to the proceedings in the Supreme Court being adjourned to the abeyance list."

1. When one has regard, inter alia, to the extent to which proceedings have gone in the Supreme Court, to the costs both parties have already expended in the resolution of the issues there, to the fact that if proceedings were to proceed here there would be a disgraceful extent of duplication and waste of those costs and when one has regard also to the fact that the applicants have delayed, in my view, quite unconscionably, in bringing their proceedings here, and that there is quite a substantial identity of factual issues which will go a long way to resolving the issues in this court by reason of estoppel, (although they will not completely resolve the matters as the issues are not identical) it seems to me that the overwhelming dictates of justice require that the proceedings in the Supreme Court continue to completion as quickly as possible, and the proceedings here, which are still in their infancy, be stayed pending that resolution.

2. I indicate that there cannot be too much concern, really, so far as time delay in proceedings here are concerned, because I am sure that after the matter in the Supreme Court have been resolved, this matter can be very quickly brought on in this court so that if there are any outstanding matters, it will not as a matter of practical reality, mean any delay in justice between the parties.

3. This case quite simply illustrates that the facts of a particular matter is the proper basis on which the decision in that matter should be made, and I am clearly of the view that as a matter of substantial justice between the parties the proceedings in this Court should be stayed pending the outcome of the Supreme Court matters. I therefore propose to grant the notice of motion and order that any further proceedings on this application be stayed pending the determination of the proceedings constituted by the Supreme Court writ number 2243 of 1983. Lest there be any dilatory conduct in respect of those matters, I give each party liberty to apply here. On the question of costs, may I indicate that I will hear the parties, but my present intention is that the applicants pay the respondent's costs of and incidental to this particular application, including reserved costs, to be taxed.