Powell v DePuy International Ltd - [2019] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
POWELL v DEPUY INTERNATIONAL LTD & ANOR
[2019] SASC 116
Judgment of The Honourable Justice Parker
9 July 2019
TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - PROCEDURE - JURISDICTION
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - SPECIAL FEDERAL MATTER
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
HIGH COURT AND FEDERAL COURT - FEDERAL COURT - ORIGINAL JURISDICTION - MATTERS ARISING UNDER LAWS MADE BY PARLIAMENT
This is an application by the defendants to transfer a civil claim to the Federal Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act). The application was originally brought under both ss 5 and 6 of the Cross-vesting Act, but the defendants now only press the application under s 5.
The plaintiff alleges that the defendants were negligent in relation to the manufacture, supply or fitting of a surgical hip implant. Her statement of claim seeks damages in negligence, for breach of statutory warranty under s 4 of the Manufacturers Warranties Act 1974 (SA) and under ss 74B and 74D of the Trade Practices Act 1974 (Cth) (TPA) (which is now entitled the Competition and Consumer Act 2010 (Cth)).
Held, per Parker J, dismissing the application:
1. But for s 39B(1A)(c) of the Judiciary Act 1903 (Cth), the Federal Court would not have jurisdiction over claims under ss 74B and 74D of the TPA (at [48]-[64]).
2. Because a claim founded upon an alleged breach of a condition implied into a contract by s 74B or 74D of the TPA arises under a law made by the Commonwealth Parliament, the Federal Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act (at [48]-[64]).
3. Section 39(2) of the Judiciary Act grants jurisdiction to the courts of the States and Territories in respect of claims under ss 74B and 74D of the TPA (at [48]-[64]).
4. A claim for loss and damage based upon the alleged failure to comply with the terms implied into the relevant contracts by ss 74B and 74D of the TPA is not a special federal matter (at [65]-[70]).
5. If it appears to the Court that any one of the three criteria in s 5(1)(b) of the Cross-vesting Act are satisfied, it must transfer the proceedings to the Federal Court (at [72], [78]).
6. The Court must ensure that the proceedings are heard in the court dictated by the interests of justice. It is not necessary to consider whether this Court is an inappropriate forum, but rather whether the Federal Court is the more appropriate forum. The answer to that question does not involve the exercise of a discretion but rather the formation of an opinion as to what is required in the interests of justice (at [91]-[95]).
7. It is not in the interests of justice for the proceedings to be transferred to the Federal Court (at [96]-[108])
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3, 4, 5, 6; Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Manufacturers Warranties Act 1974 (SA) s 4; Trade Practices Act 1974 (Cth) ss 71, 74, 74B, 74D, 82, 83, 86, 86A, 87, 144, 163, 163A; Competition and Consumer Act 2010 (Cth); Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) sch 7 cl 6; Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth); Judiciary Act 1903 (Cth) ss 39, 39B; Law and Justice Legislation Amendment Act 1997 (Cth) sch 11 cl 1; Law and Justice Legislation Amendment Act 1999 (Cth); Sale of Goods Act 1895 (SA) ss 14, 54; Bankruptcy Act 1966 (Cth); Civil Liability Act 1936 (SA); Corporations Act 2001 (Cth); Supreme Court Civil Supplementary Rules 2014 (SA); Australian Constitution ss 75, 76, 77, referred to.
Coshott v Crouch (2018) 333 FLR 446; Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283; Zaravinos v Dairy Farmers Co-operative Ltd (1985) 7 FCR 195; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Prentice v AGL Sales Pty Ltd (2015) 296 FLR 202; Efax Pty Ltd v Sunray Capital Markets Pty Ltd (in liq) [2011] NSWSC 554; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Whitelum v Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [2018] NSWSC 51; De Beers Consolidated Mines Ltd v Howe [1906] AC 455, applied.
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174, distinguished.
Ewins v Buderim Imports Pty Ltd (1987) 76 ALR 157; Donoghue v Stevenson [1932] AC 562; Valceski v Valceski (2007) 70 NSWLR 36; Garra Water Investments Pty Ltd v Ourback Yard Nursery Pty Ltd [2010] SASC 326; Bankinvest AG v Seabrook (1988) 14 NSWLR 711, considered.

POWELL v DEPUY INTERNATIONAL LTD & ANOR
[2019] SASC 116
Civil

PARKER J: This is an application by the defendants to transfer a civil claim to the Federal Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross‑vesting Act). For the reasons that follow, I reject the application to transfer the matter to the Federal Court.
The plaintiff alleges that the defendants were negligent in relation to the manufacture, supply or fitting of a surgical hip implant. Her statement of claim seeks damages in negligence, for breach of statutory warranty under s 4 of the Manufacturers Warranties Act 1974 (SA) and under ss 74B and 74D of the Trade Practices Act 1974 (Cth) (TPA) (which is now entitled the Competition and Consumer Act 2010 (Cth)). For the reasons explained below, the plaintiff’s claims under the TPA are governed by that Act as it stood immediately prior to 1 January 2011.
Because of the history of this matter, my reasons are considerably longer than ordinarily would be the case for such an application.
The basis upon which the defendants have sought transfer of the proceedings to the Federal Court has been progressively revised. The defendants initially contended that the proceedings were a “special federal matter” within the meaning of s 3 of the Cross-vesting Act and thus the Court must transfer the matter to the Federal Court under s 6 of that Act. However, the defendants abandoned that contention soon after the conclusion of oral submissions. Nevertheless, it is necessary for the Court to consider that issue so as to be satisfied that the defendants’ initial contention was not correct and this is not a special federal matter that must be transferred to the Federal Court.
The defendants also initially contended that the Court was required under s 5(1)(b)(ii) of the Cross-vesting Act to transfer the matter to the Federal Court. However, the defendants now rely upon s 5(1)(b)(iii) of the Cross-vesting Act and contend that it is in the interests of justice that the proceedings be determined by the Federal Court.
At all times the plaintiff has opposed transfer of the proceedings to the Federal Court.
Background
The plaintiff, Teresa Jane Powell, underwent hip replacement surgery on 28 January 2010 at the Flinders Private Hospital, performed by an orthopaedic surgeon, Dr Matthew Liptak. The hip replacement surgery involved the surgical implant of parts from two metal-on-metal hip prosthetic systems, i.e. the DePuy Pinnacle hip system and the DePuy Corail hip system. The plaintiff has collectively referred to those items as the Corail Pinnacle system. I will adopt the same terminology.
The first defendant, DePuy, manufactured, distributed and sold the Corail Pinnacle system. DePuy is incorporated in the United Kingdom and is, thus, alleged to be a “foreign corporation” within the meaning of s 4 of the TPA. The plaintiff further alleges that DePuy carried on the business of supplying, selling, distributing, promoting, marketing and obtaining regulatory approval for the Corail Pinnacle system in conjunction with the second defendant, Johnson and Johnson Medical Pty Ltd. Johnson and Johnson is alleged to be a trading corporation within the meaning of s 4 of the TPA and, in that capacity, marketed, distributed and supplied medical devices such as the Corail Pinnacle system.
The plaintiff alleges that excessive wear occurred at the articulating surfaces of the Corail Pinnacle system. The excessive wear is alleged to have caused metal shavings to leach into the plaintiff’s bloodstream and the tissue surrounding the prosthesis. Blood tests undertaking in March 2015 allegedly showed that the plaintiff had grossly elevated concentrations of cobalt and chromium in her blood. This is said to have caused a wide range of symptoms, including pain, infection and disability, that have impaired the plaintiff’s ability to participate in employment and a range of social and recreational activities.
The central issue in these proceedings is whether the Corail Pinnacle system was defective. The plaintiff commenced proceedings in the District Court on 28 April 2016.
The plaintiff consented to the transfer of the proceedings from the District Court to the Supreme Court. However, she disputed the initial contention of the defendants that the Supreme Court does not have jurisdiction to determine the claim and also maintains her contention that the interests of justice do not require that the matter be transferred to the Federal Court.
Statutory provisions
The Trade Practices Act 1974
The TPA became the Competition and Consumer Act with effect from 1 January 2011. It is common ground between the parties that cl 6 of Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) operates to apply the TPA as in force immediately prior to 1 January 2011 to these proceedings. Clause 6(2) of Schedule 7 provides that action may be taken under or in relation to Part VC or VI of the TPA as in force prior to 1 January 2011. Part VI deals with enforcement and remedies.
Section 82(1) of the TPA, as it stood immediately prior to 1 January 2011, provided as follows:
82Actions for damages
(1) Subject to subsection (1AAA), a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
Section 86 of the TPA, as it stood at the relevant time, was in the following terms:
86Jurisdiction of courts
(1AA)       A reference in this section to this Act, or to a Part, Division or section of this Act, is a reference to this Act, or to that Part, Division or section, as it has effect as a law of the Commonwealth.
(2) Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part or has been instituted in relation to subsection 2(1) of the Australian Consumer Law (as applied under Division 1 of Part XI).
(1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under section 46, Part IVA, Part IVB, Division 1, 1AAA, 1A or 2A of Part V or Part VA, or a provision of the Australian Consumer Law, in respect of which a civil proceeding is instituted by a person other than the Minister.
(2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVA or IVB or Division 1, 1A or 1AA of Part V, or a provision of the Australian Consumer Law, in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.
(3)     Nothing in subsection (2) shall be taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.
(3A) The Supreme Court of a State is invested with federal jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court.
(3B) Subject to the Constitution, the Supreme Court of a Territory is conferred with jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court.
(4)     The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of the Federal Magistrates Court under subsection (1A); and
(b) the jurisdiction of the several courts of the States and Territories under subsection (2); and
(ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and
(bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and
(c) the jurisdiction of the High Court under section 75 of the Constitution.
The plaintiff is seeking damages under ss 74B and 74D of the TPA. Section 74B provided that a corporation is liable to compensate a consumer and, in certain circumstances another person, where in trade or commerce it has supplied goods that are not reasonably fit for purpose. Section 74D of the TPA operates similarly to s 74B, except that it applies to the supply of goods that are not of merchantable quality.
The Jurisdiction of Courts (Cross-vesting) Act 1987
I accept the correctness of the defendants’ submission that as this matter includes causes of action arising under a Commonwealth Act, being ss 74B and 74D of the TPA, the Court would exercise Federal jurisdiction should it proceed to determine the claim. Accordingly, the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applies to the present application rather than the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA).[1]
[1] Coshott v Crouch (2018) 333 FLR 446.
The following provisions of the Cross-vesting Act are relevant to the various contentions that have been advanced in this matter:
3Interpretation and application
(1)     In this Act, unless the contrary intention appears:
...
special federal matter means:
(a)a matter arising under Part IV of the Competition and Consumer Act 2010 (other than under section 45D, 45DA, 45DB, 45E or 45EA); or
(aa)a matter arising under the Competition Code (as defined in section 150A of the Competition and Consumer Act 2010) of the Australian Capital Territory or the Northern Territory; or
(ab)a matter arising under section 60G of the Family Law Act 1975 in a court other than the Family Court of Western Australia or the Supreme Court of the Norther Territory; or
(b)a matter involving the determination of questions of law on appeal from a decision of, or of questions of law referred or stated by, a tribunal or other body established by an Act or a person holding office under an Act, not being a matter for determination in an appeal or a reference or case stated to the Supreme Court of a State or Territory under a law of the Commonwealth that specifically provides for such an appeal, reference or case stated to such a court; or
(c)a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e)a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
...
4      Additional jurisdiction of certain courts
(1)     Where:
(a)the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b)the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
Then:
(c)in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)–that court is invested with federal jurisdiction with respect to that matter; or
(d)in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)–jurisdiction is conferred on that court with respect to that matter.
(2)     Where:
(a)the Supreme Court of a Territory has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b)the Federal Court, the Family Court or the Supreme Court of a State or of another Territory would not, apart from this section, have jurisdiction with respect to that matter;
jurisdiction is conferred on the court referred to in paragraph (b) with respect to that matter.
(3)     Where a proceeding is transferred to the Federal Court, the Family court or a State Family Court of a State, that court has, by virtue of this subsection, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this subsection.
(4)     This section does not apply to a matter arising under:
(a)the Conciliation and Arbitration Act 1904; or
(ab)the Fair Work Act 2009; or
(aba)the Building and Construction Industry (Improving Productivity) Act 2016; or
(ac)the Fair Work (Registered Organisations) Act 2009; or
(ad)the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or
(b)the Workplace Relations Act 1996; or
(ba)the Native Title Act 1993; or
(c)section 45D, 45DA, 45DB, 45E, 45EA, 46A, 155A or 155B of the Competition and Consumer Act 2010; or
(d)a provision of Part VI or XII of the Competition and Consumer Act 2010 so far as the provision relates to section 46A, 155A or 155B of that Act.
5Transfer of proceedings
(1)     Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and
(b)it appears to the first court that:
…
(ii)having regard to:
(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross‑vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Family Court;
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross‑vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court;
the first court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
…
6Special federal matters: general rules
(1)     If:
(a)a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
(b)the court does not make an order under subsection (3) in respect of the matter;
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).
Note:This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States).

The reference in s 6(1) to a court mentioned in s 6(2)(b) covers the Family Court, the Family Court of Western Australia and the Supreme Court of the Northern Territory. None of those Courts are relevant to the present matter.
I also note that s 6(3) of the Cross-vesting Act empowers the Supreme Court to order that the proceeding be determined by this Court if it is satisfied that there are special reasons for doing so in the particular circumstances, other than reasons relevant to the convenience of the parties. That provision has not been invoked by the parties, and it is unnecessary to give it further consideration.
Procedural history
As I have previously noted, the defendants initially advanced two discrete arguments in support of their application to have the proceedings transferred to the Federal Court. The first argument was that this is a special federal matter as defined in s 3(1) of the Cross-vesting Act and therefore the Court is required by s 6(1) of that Act to transfer the matter to the Federal Court. The oral submissions made by senior counsel for the defendants largely focused on this first contention.
While the point was comprehensively addressed in written submissions, senior counsel referred only briefly in oral submissions to the defendants’ second contention that the Court should find under s 5(1)(b)(ii) of the Cross‑vesting Act that it is more appropriate that the proceedings be determined by the Federal Court.
By letter dated 20 September 2018, senior counsel for the defendants advised the Court that they no longer wished to press their application under s 6 of the Cross-vesting Act and now only sought transfer to the Federal Court pursuant to s 5 of that Act. The letter did not differentiate between s 5(1)(b)(ii) and s 5(1)(b)(iii). No explanation was provided for the abandonment of the s 6 contention.
Unfortunately, I misconstrued counsel’s letter and proceeded on the mistaken basis that the defendants now relied solely upon s 6 rather than s 5. At least in part, my misapprehension arose because senior counsel had focused upon s 6 in his oral submissions and had given much less attention to s 5. I proceeded to prepare a judgment based upon my misunderstanding of the defendants’ revised position. On 21 December 2018, I commenced to deliver a judgment in which I found in favour of the defendants’ argument that the Court was required to transfer the matter to the Federal Court under s 6 of the Cross‑vesting Act. The junior counsel for the defendants who had attended to receive judgment promptly informed me of my misunderstanding as to the basis upon which the defendants now pursued the matter.
I therefore withdrew my judgment without it having been published and did not make any orders as to the application. I adjourned the matter so as to permit further consideration by senior counsel and granted the parties permission to file supplementary written submissions. Thereafter, after receiving written submissions in February and March 2019, on 15 May 2019 I invited the parties to address a question as to whether, if the matter was a special federal matter, the Court was required to transfer the proceedings to the Federal Court under s 6 of the Cross-vesting Act regardless of the fact that neither party now advocated that position. I asked that question as I was concerned that the initial submission by senior counsel for the defendants that the Court was required by s 6 to transfer the matter to the Federal Court may possibly be correct and no explanation had been given as to the reasons for abandonment of that contention. The final written submissions were not received until early June 2019.
While the defendants no longer advance their contention that the matter must be transferred to the Federal Court under s 6 of the Cross-vesting Act, it remains necessary for the Court to consider whether it must take that step. The Court cannot allow the proceedings to remain on foot in this Court if in fact the defendants were correct in their initial contention that s 6 of the Cross-vesting Act imposed a mandatory obligation to transfer the matter to the Federal Court. It is also necessary to consider the defendants’ revised contention that the Court should transfer the matter to the Federal Court under s 5(1)(b)(iii) of the Cross-vesting Act. As I have previously noted, the defendants had originally relied upon s 5(1)(b)(ii) as the alternative basis for transfer to the Federal Court.
The defendants’ response to the question asked by Court
As I noted previously, the parties were invited on 15 May 2019 to address the following question:
Assuming that this matter is a “special federal matter” within the meaning of s 3 of the Jurisdiction of Courts (Cross-vesting) Act, is the Supreme Court of South Australia required by s 6 to transfer this matter to the Federal Court notwithstanding that no party presses for its transfer under that section?
The defendants’ submitted that the answer to the preceding question was “yes”, provided that the Court had not made an order under s 6(3) of the Cross‑vesting Act. That would require the Court to be satisfied that there were “special reasons” for making such an order, and also require satisfaction that the requirements of s 6(4) concerning notice to the Attorneys-General of the Commonwealth and of South Australia had been met. In other words, the defendants submitted that the words of s 6(1) are mandatory and self-executing in those case where the provision applies regardless of whether or not a party to the proceeding had made an application under s 6. The plaintiffs agreed with this submission. I likewise accept the correctness of that submission.
Counsel for the defendants also explained the basis for their decision to abandon their initial contention that the Court was required to transfer the matter to the Federal Court under s 6 of the Cross-vesting Act. The basis for their change of position was that counsel had become aware of the authorities to which I am about to refer. Those authorities concern the relationship between proceedings arising under Division 2A of Part V of the TPA and actions for damages under s 82 of the TPA. Consideration of those authorities had led counsel to the view that s 86 of the TPA did not confer exclusive jurisdiction on the Federal Court with respect to matters arising under s 74B and s 74D of the TPA. For that reason, both of the criteria required by the definition of “special federal matter” in s 3 of the Cross-vesting Act could not be satisfied. For that reason, counsel concluded that the application under s 6 should not be prosecuted further. Counsel for the plaintiff agreed with this conclusion.
The authorities referred to by counsel for the defendants were Arturi v Zupps Motors Pty Ltd,[2] Zaravinos v Dairy Farmers Co-operative Ltd,[3] Stack v Coast Securities (No 9) Pty Ltd[4] and Prentice v AGL Sales Pty Ltd.[5] I will consider those authorities later.
[2] (1980) 49 FLR 283 at 286-287 (Brennan J).
[3] (1985) 7 FCR 195 at 199 (Lockhart J).
[4] (1983) 154 CLR 261 at 276-277 (Gibbs CJ).
[5] (2015) 296 FLR 202 at 209 [17]-[19] (Martin J).
In summary, the defendants not only no longer press their initial contention that these proceedings are a special federal matter, but now acknowledge that their submission was not correct. They now rely solely on s 5 of the Cross‑vesting Act.
Whether a special federal matter
Before considering the authorities identified by the defendants, it is necessary to refer to the arguments initially advanced by the parties as whether or not these proceedings give rise to a special federal matter that must be transferred to the Federal Court.
The defendants’ initial contention – this is a special federal matter
The defendants initially advanced the following propositions in support of their contention that the proceedings are a “special federal matter”. Section 3 of the Cross-vesting Act relevantly includes in the definition of a “special federal matter”, a matter that is:
(i) a matter in respect of which the Supreme Court would not have jurisdiction apart from the Cross-vesting Act; and
(ii) within the original jurisdiction of the Federal Court by virtue of s 39B of the Judiciary Act 1903 (Cth).
The combined effect of sub-ss (1), (2) and (4) of s 86 of the TPA is to confer exclusive jurisdiction on the Federal Court with respect to any claims under ss 74B and 74D of that Act. Thus, the Supreme Court would not have jurisdiction in respect of a claim under ss 74B and 74D of the TPA apart from the operation of s 4 of the Cross-vesting Act. Thus, placitum (i) of the definition of a “special federal matter” is satisfied.
Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under a law made by the Commonwealth Parliament other than a criminal matter. The claims of the plaintiff under ss 74B and 74D of the TPA are matters arising under a law made by the Commonwealth Parliament. Thus, placitum (ii) is also satisfied.
The defendants submitted that because both placita (i) and (ii) of the definition of a “special federal matter” are satisfied, the Court is required by s 6 of the Cross-vesting Act to transfer the proceedings to the Federal Court.
The plaintiff’s initial contentions – this is not a special federal matter
The initial contentions of the plaintiff as to whether the proceedings are a “special federal matter” commenced with the observation that her claim invokes both the common law and the TPA. The authority of this Court to determine a negligence claim is axiomatic while the Court derives its authority in respect of federal matters from the conferral of Commonwealth judicial power by the Commonwealth Parliament.
When originally enacted, s 86 of the TPA conferred exclusive jurisdiction on the Federal Court, save for the jurisdiction of the High Court under s 75 of the Constitution. However, s 86 was amended in 1987 to confer jurisdiction on State courts with respect to civil claims under the TPA.[6] That amendment was enacted as part of the same legislative package which included the Cross-vesting legislation.
[6] The amendment was effected by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth).
Section 86(2) expressly confers jurisdiction upon State courts to determine a claim under Part V of the TPA. The only limitation is that State courts may only grant remedies that they could award under State law. Section 86(2) does not confer upon State courts power to grant additional remedies. That interpretation is consistent with s 86(3) of the TPA.
Jurisdiction under the TPA is conferred on every State entity that meets the description of a court in s 77(iii) of the Constitution. Accordingly, the Supreme Court has jurisdiction to exercise all powers conferred under the TPA, whether that be an award of damages, declaratory relief, injunctive relief or some other remedy.
The plaintiff seeks damages for personal injury and loss. The award of damages as a remedy is a core function of the Supreme Court. Section 87 of the TPA provides for the award of damages. Damages under s 87 are not materially different to damages at common law. In fact, s 87 refers to the common law principles governing the award of damages, albeit that it sets thresholds and limits on the damages recoverable.
Because the award of damages for personal injury is “a remedy of a kind” that the Supreme Court may grant, limitations placed upon State courts by ss 83(3) and 86(2) of the TPA are not exceeded. Thus, the Supreme Court cannot be said to exceed its power in granting an award of damages, whether at common law or under s 87 of the TPA.
The plaintiff contended that the attempt by the defendants to characterise her claim as being made under s 87 of the TPA was misconceived. In that respect, the plaintiff relied upon Ewins v Buderim Imports Pty Ltd.[7]
[7] (1987) 76 ALR 157.
A finding by this Court that the Federal Court had exclusive power to deal with civil claims under the TPA would be inconsistent with the power of that Court under s 86A of the TPA to transfer proceedings to a State court.
The plaintiff also observed that litigation in State courts under the TPA is a commonplace occurrence. The contention advanced by the defendants sought to invalidate a large number of cases decided in State courts, including inferior State courts.
For the preceding reasons, the plaintiff contended that the initial argument by the defendants that the Federal Court has exclusive jurisdiction over consumer claims under Part V of the TPA was wrong. The Supreme Court has always had jurisdiction to hear claims of this character. By way of example, the plaintiff referred to claims under the Sale of Goods Act 1895 (SA).
The plaintiff’s further contentions – this is not a federal special matter
In response to the question asked by the Court, senior counsel for the plaintiff maintained the contention that this proceeding was not a special federal matter. However, counsel conceded that if her submission was not accepted then the Court would be obliged to transfer the matter unless it made an order under s 6(3) of the Cross-vesting Act. Senior counsel further submitted that the authorities referred to by the defendants supported the view that s 86 of the TPA did not confer exclusive jurisdiction on the Federal Court with respect to matters arising under s 74B and s 74D of that Act. Counsel relied, in particular, on the observation of Gibbs CJ in Stack v Coast Securities. On that basis, the plaintiff submitted that the definition of “special federal matter” in s 3 of the Cross‑vesting Act was not satisfied.
Authorities identified by the defendants
It is necessary to consider the several judgments that caused senior counsel for the defendant to abandon his submission that this was a special federal matter that must be transferred to the Federal Court.
Arturi v Zupps Motors Pty Ltd
In Arturi v Zupps, Brennan J (as his Honour then was) of the Federal Court considered a claim under s 71 and s 74D of the TPA for damages for breach of contract.[8] The dispute between the parties concerned a contract for the purchase of a new motor vehicle. At the relevant time, s 86 of the TPA provided “[j]urisdiction is conferred on the Court to hear and determine actions, prosecutions and other proceedings under this Part and that jurisdiction is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under section 75 of the Constitution.”
[8] (1980) 49 FLR 283.
The term “proceedings under this Part” included a proceeding under s 82(1). At that time s 82(1) provided that “[a] person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.”
In light of these provisions, Brennan J identified the relevant question as being whether the applicant was seeking to recover an amount of loss or damage caused by “conduct that was done in contravention of a provision of … Part V”.
The statement of claim alleged that there was an agreement between the applicant and the motor dealer which was subject to an implied condition that the said motor vehicle was reasonably fit for the purpose by reason of the provisions of s 71. It was also alleged that the agreement was subject to a further implied condition that the vehicle was of merchantable quality by virtue of s 71.
At the relevant time s 71 provided that:
(1)Where a corporation supplies … goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality … .
Section 71(2) similarly imposed an implied condition that goods supplied under a contract are reasonably fit for purpose.
Brennan J noted that jurisdiction arises under s 82 of the TPA when the damage claimed is alleged to have been caused by conduct done in contravention of Parts IV or V, that being conduct which does not conform to norms of conduct prescribed by those provisions. However, Brennan J held that s 71 does not prescribe a norm of conduct. It operates by affecting the legal relationship between parties to a contract by importing one or more conditions into the contract. The provision does not proscribe conduct by the supplier of goods, but relates to the quality of the goods supplied.
Brennan J stated that there are two reasons why the breach of a condition implied by s 71 does not involve conduct in contravention of a provision of Part V. Those reasons were, first, the breach does not consist in the conduct of supplying goods but rather the lack of correspondence between the state of the goods supplied and the quality referred to in s 71. Secondly, s 71 operates by imposing an obligation upon one of the parties as though the parties had included that obligation in their contract. Brennan J stated that such an obligation “takes effect by a legal fiction, namely, that the parties had made a contract which included the obligation.” Thus, for the purposes of s 82, breach of the obligation is not to be treated as a breach of an obligation imposed by the Act outside the contract, but rather an obligation imposed by the contract itself.
For that reason, Brennan J held that a proceeding for damages for breach of s 71 does not fall within s 82. Brennan J also held that the Federal Court did not have jurisdiction with respect to the claim under s 74D of the TPA against the importer of the vehicle.[9] His Honour dismissed the application because the applicant had not invoked the jurisdiction of the Federal Court in any matter where jurisdiction was conferred by Part VI or any other provision of the TPA.
[9] The importer was deemed to be the manufacturer pursuant to s 74A of the TPA.
Brennan J noted that if a claim was properly made under s 74D, the jurisdiction to determine such a claim was conferred by s 74(1). At that time s 74(1) created a liability to compensate a consumer which may be enforced against a corporation in a court of competent of jurisdiction. What constituted a court of competent of jurisdiction was identified in s 39(2) of the Judiciary Act 1903 (Cth). That provision conferred jurisdiction upon the courts of the States and Territories.
Stack v Coast Securities (No 9) Pty Ltd
The issue in Stack v Coast Securities was the jurisdiction of the Federal Court to adjudicate on non-federal claims arising in a defence or cross claim.[10] The High Court held that the jurisdiction of the Federal Court was exclusive of that of other courts only in respect of actions, prosecutions and other proceedings under Part VI of the TPA, but was not exclusive with respect to “attached or accrued” jurisdiction. That issue is not directly relevant.
[10] (1983) 154 CLR 261.
The relevance of Stack v Coast Securities arises from the observation by Gibbs CJ that jurisdiction in matters which arise under the TPA, but which do not fall within ss 86, 144(2), 163(2) or 163A(1) of the TPA, was not conferred on the Federal Court. That jurisdiction was invested in the State courts by s 39(2) of the Judiciary Act. His Honour also noted that there was no provision in the TPA that conferred jurisdiction on the Federal Court in matters arising under Part IV or V. Matters under those Parts, which did not also arise under Part VI, were within the jurisdiction of the State courts. Amongst other authorities for that proposition, Gibbs CJ referred to Arturi v Zupps.
Zaravinos v Dairy Farmers Co-operative Ltd
The facts in Zaravinos v Dairy Farmers[11] were reminiscent of those in Donoghue v Stevenson.[12] Mr Zaravinos purchased a carton of milk from a shop. His wife drank the milk and then discovered that the carton contained part of a rat. She suffered physical symptoms and nervous shock while her husband claimed damages for loss of consortium. The damages were claimed under, inter alia, s 74B and s 74D of the TPA, New South Wales food safety legislation and the common law. Lockhart J followed Arturi v Zupps and held that, because there was no conduct that contravened the provision of the TPA upon which the plaintiff relied, none of the federal claims were soundly based. As their other claims were based on non-federal elements, the Federal Court had no jurisdiction to hear the matter.
[11] (1985) 7 FCR 195.
[12] [1932] AC 562.
Prentice v AGL Sales Pty Ltd

The issue in Prentice v AGL Sales was whether a claim for damages under s 74B of the TPA came within the meaning of a “tort” in certain Queensland legislation that allowed a contribution to be ordered where damage had been suffered as a result of a tort.[13] In the course of deciding that question, Martin J of the Supreme Court of Queensland followed Zaravinos v Dairy Farmers insofar as Lockhart J had held that s 74B of the TPA did not prohibit conduct of any kind and thus a claim could not be brought under s 82 of the TPA.
[13] (2015) 296 FLR 202.
Consideration as to whether a special federal matter
The plaintiff advances a claim for loss and damage under s 74B and 74D of the TPA on the basis that the Coral Pinnacle system was not reasonably fit for purpose and of merchantable quality. The clear effect of Arturi v Zupps and the other authorities to which I have referred is that those claims would not have been within the jurisdiction of the Federal Court but for an amendment made in 1997 to s 39B of the Judiciary Act.
Section 39B(1A) was added to the Judiciary Act by cl 1 of Schedule 11 to the Law and Justice Legislation Amendment Act 1997 (Cth) with effect from 17 April 1997. As originally enacted in 1997, s 39B(1A) provided as follows:
The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament.[14]
[14] With effect from 13 October 1999, the words “other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter” were added to s 39B(1A)(c) by the Law and Justice Legislation Amendment Act 1999 (Cth). That amendment is not relevant for present purposes but I simply note it for completeness.
Section 39(2) of the Judiciary Act invests Federal jurisdiction upon State and Territory courts in all matters in respect of which the High Court is capable of being conferred with original jurisdiction. Section 76(ii) of the Constitution provides that original jurisdiction may be conferred upon the High Court in all matters arising under laws made by the Commonwealth Parliament. Claims under ss 74B and 74D of the TPA are matters arising under laws made by the Commonwealth Parliament. Thus, s 39(2) of the Judiciary Act operates to confer jurisdiction upon State and Territory courts in respect of claims under ss 74B and 74D of the TPA.
In summary, the position with respect to jurisdiction over claims made under ss 74B and 74D of the TPA (and also other similar provisions) is as follows:
(a)subject to paragraph (b) below, the Federal Court would not have jurisdiction over such claims, because they do not relate to the “conduct” of a person within the meaning of s 82 of the TPA but operate by implying a condition into a contract that falls within the scope of those provisions;
(b)because a claim founded upon an alleged breach of a condition implied into a contract by ss 74B or 74D arises under a law made by the Commonwealth Parliament, the Federal Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act; and
(c)s 39(2) of the Judiciary Act grants jurisdiction to the courts of the States and Territories in respect of claims under ss 74B and 74D of the TPA.
The first limb of the definition of “special federal matter” in s 3 of the Cross‑vesting Act refers to a matter in respect of which the Supreme Court would not have jurisdiction apart from the Cross-vesting Act. It is apparent from the preceding analysis that the Supreme Court does not derive its jurisdiction over claims under ss 74B and 74D of the TPA from the Cross‑vesting Act. The Supreme Court has jurisdiction over such claims under s 39(2) of the Judiciary Act.
It is necessary to consider the initial contention by the defendants that the combined effect of sub-ss (1), (2) and (4) of s 86 of the TPA was to confer exclusive jurisdiction on the Federal Court with respect to any claims under ss 74B and 74D of that Act. They further contended that because s 86 of the TPA conferred exclusive jurisdiction on the Federal Court in relation to the matters arising under ss 74B and 74D of that Act, the Supreme Court would not have jurisdiction in respect of such matters, apart from the operation of the Cross‑vesting Act.
The defendants sought to draw support for that submission from the decision of the Full Federal Court, comprising Allsop CJ, Katzmann and Gleeson JJ, in Truthful Endeavour Pty Ltd v Condon.[15] However, that case turned on the particular provisions of the Bankruptcy Act 1966 (Cth). It provides no assistance as to whether the Federal Court has exclusive jurisdiction over claims under ss 74B and 74D of the TPA as it stood at the relevant time.
[15] (2015) 233 FCR 174 at 187 [48] (Allsop CJ, Katzmann and Gleeson JJ).
Section 86(1) of the TPA conferred jurisdiction on the Federal Court in any matter in respect of which a civil proceeding has been instituted under Part VI alleging that loss or damage has been suffered due to the conduct of another person. Section 82 was included in Part VI. It provided for the institution of civil proceedings for loss or damage occasioned by the conduct of another person done in contravention of, inter alia, Part V. The relevant provisions of Part V are ss 74B and 74D.
The decision of Brennan J in Arturi v Zupps establishes that civil proceedings could not be instituted in the Federal Court under s 82 due to an alleged failure to supply goods that satisfied the conditions implied into a relevant contract by ss 74B or 74D. Accordingly, s 86(1) of the TPA did not confer jurisdiction on the Federal Court in respect of such proceedings. For that reason it is unnecessary to consider the competing contentions advanced by the parties concerning the operation of s 86(2).
I am satisfied that the claim for loss and damage based upon the alleged failure to comply with the terms implied into the relevant contracts by ss 74B and 74D of the TPA is not a special federal matter. This Court has jurisdiction under s 39(2) of the Judiciary Act and the Federal Court also has jurisdiction under s 39B(1A)(c) of that Act because the particular terms are implied into the contract under a law made by the Commonwealth Parliament. This Court is therefore not required by s 6 of the Cross-vesting Act to transfer the claim to the Federal Court.
Section 5(1) of the Cross-vesting Act
If ss 5(1)(a) and 5(1)(b) of the Cross-vesting Act are satisfied, the Supreme Court must transfer the proceedings to the Federal Court. The criterion in s 5(1)(a) is plainly satisfied as the proceedings are pending in the Supreme Court. The question then is whether s 5(1)(b) is satisfied.
The three distinct criteria expressed in placita (i), (ii) and (iii) of s 5(1)(b) are not cumulative but operate in the alternative because of the use of the disjunctive word “or”. Thus, if it appears to the Court that any one of the three criteria are satisfied, it must transfer the proceedings to the Federal Court.
The criterion in placitum (i) of s 5(1)(b) is clearly not applicable as there are no relevant proceedings pending in the Federal Court. The defendants initially based their submissions upon placitum (ii) of s 5(1)(b) but now rely upon placitum (iii).
Section 5(1)(b)(ii)
Section 5(1)(b)(ii) requires the Court to transfer a matter to the Federal Court where it appears to the Court that, having regard to the prescribed matters set out at paragraphs (A), (B) and (C) of s 5(1)(b)(ii), it is more appropriate that the proceedings be determined by the Federal Court.
In light of their contention as to the operation of s 86 of the TPA, the defendants further submitted that, but for the operation of s 4 of the Cross‑vesting Act, a substantial part of the proceedings (being the claims under ss 74B and 74D of the TPA), would have been incapable of being instituted in the Supreme Court. Thus, the defendants initially submitted that the requirements of paragraph (A) of s 5(1)(b)(ii) were met.
The defendants also submitted that the matters to be determined in these proceedings included matters arising under or involving questions as to the application, interpretation and validity of a law of the Commonwealth, i.e. ss 74B and 74D of the TPA. Those matters would not be within the jurisdiction of this Court apart from the operation of the Cross-vesting Act. On that basis, the defendants submitted that the requirements of paragraph (B) were also met.
I have rejected the contentions initially advanced by the defendants (which they no longer press) concerning the operation of s 86 of the TPA. For that reason the considerations identified in paragraphs (A) and (B) of s 5(1)(b)(ii) do not arise. It is therefore necessary to consider the operation of s 5(1)(b)(iii).
Section 5(1)(b)(iii)
Because the three placita in s 5(1)(b) operate disjunctively, placitum (iii) enacts an independent head of power to cross-vest a matter in the interests of justice, regardless of whether there are other proceedings on foot in the Federal Court.[16] The end result is that s 5(1)(b)(iii) requires that in a case where it appears to the Court that it is otherwise in the interests of justice, that the proceedings be determined by the Federal Court, the Court shall transfer the proceedings to the Federal Court.
[16] Efax Pty Ltd v Sunray Capital Markets Pty Ltd (in liq) [2011] NSWSC 554 at [50] (Ward J); Coshott v Crouch (2018) 333 FLR 446 at 461 [66] (Parker J).
The defendants’ submissions concerning s 5(1)(b)(iii)
The defendants submit that s 5(1)(b)(iii) requires that the Court exercise the power of transfer wherever it appears to be in the interests of justice that the power should be exercised. This does not involve the exercise of a discretion. There is also no requirement that the Court must be satisfied that it is a clearly inappropriate forum.
The defendants also submit that the statutory test will be satisfied if it is in the interests of the justice that the Federal Court is more appropriate. Because the statute requires that the more appropriate forum be identified, no specific emphasis can be given in favour of the choice of forum that has been made by the plaintiff. Additionally, the party seeking transfer does not bear any persuasive burden nor is it required to satisfy any onus of proof.
The defendants support their application by reference to the first affidavit sworn by Sally-Anne Ivimey dated 5 June 2018. They submit that the facts deposed to by Ms Ivimey establish that the plaintiff’s case is not one in which the geographical or local connection or the availability or convenience of lay witnesses requires that the matter remain in this Court. If the matter were to be transferred it would proceed in the South Australian Registry of the Federal Court. However, the defendants’ solicitors are located in Sydney. It will therefore assist with the efficient conduct of the proceedings that documents may be filed at the Sydney Registry of the Federal Court for use in Adelaide or, alternatively, documents may be filed by the Federal Court’s remote electronic lodgement system.
The defendants also place reliance upon the fact that the nature of the issues raised in the proceedings has the potential to require evidence from various experts, or representatives of the first and second defendants, or from other third parties, located around Australia or internationally. That may include evidence of a formal nature. Thus, it was reasonable to anticipate that access to the Registry and courtrooms of the Federal Court located across Australia may assist in taking such evidence remotely should that be required.
The defendants also pointed to the fact that the plaintiff had not filed any evidence identifying any matter that was said to weigh against the transfer of the proceedings to the Federal Court, or why it was more appropriate that the proceedings should remain in this Court.
For the preceding reasons the defendants submit that, on balance, the interests of justice favour the transfer of the proceedings to the Federal Court and there was no particular reason why the matter would be more appropriately heard in this Court. However, they have identified reasons why it would be more appropriate for it to be heard in the Federal Court.
The plaintiff’s submissions concerning s 5(1)(b)(iii)
The plaintiff submits that although parties seeking an order for transfer under the Cross-vesting Act do not bear a burden of proof, the defendant must prove that the Federal Court is a more appropriate forum. The plaintiff is not required to prove that the Supreme Court is the more appropriate forum. The plaintiff draws support for that submission from the observations of Gummow J in BHP Billiton Ltd v Schultz.[17]
[17] (2004) 221 CLR 400 at 437 [71] (Gummow J).
The plaintiff also notes that in Whitelum v Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland, Rothman J of the New South Wales Supreme Court listed a number of considerations that it is appropriate for the Court to take into account in determining an application for the transfer of proceedings under the Cross-vesting Act.[18] The plaintiff also observes that in Valceski v Valceski, Brereton J of the New South Wales Supreme Court stated that “if both courts are equally appropriate … the initial choice [of the plaintiff] will have significance”.[19] Callinan J also referred in BHP Billiton to the fact that in most cases the natural forum will be the jurisdiction in which the tort was committed, as prima facie this forum will be better equipped to deal with the issues.
[18] [2018] NSWSC 51.
[19] (2007) 70 NSWLR 36 at 60 [70] (Brereton J).
The plaintiff also submits that it is a matter for the defendants to establish that the transfer is in the “interests of justice” within the meaning of s 5(1)(b)(iii) of the Cross-vesting Act.[20]
[20] Garra Water Investments Pty Ltd v Ourback Yard Nursery Pty Ltd [2010] SASC 326 at [13] (White J).
The plaintiff submits that the essence of the argument advanced by the defendants is simply that the Federal Court is the more natural forum to determine disputes under the TPA. However, that contention fails to recognise that the plaintiff also relies upon the Civil Liability Act 1936 (SA). The Federal Court does not regularly and routinely deal with matters under the Civil Liability Act. Thus, because the claim embraces both the TPA and the Civil Liability Act, the more natural forum is the Supreme Court. The plaintiff draws support for that submission from the observation of Callinan J in BHP Billiton that it is better that the laws of a State be construed by the Supreme Court.[21]
[21] (2004) 221 CLR 400 at 490-491 [248] (Callinan J).
The plaintiff also observes that the tort occurred in South Australia. Many lay and medical witness such as treating surgeons, ancillary health providers, employers and so forth will be called to give evidence. Accordingly, the plaintiff submits that the local connection is a significant consideration in determining the appropriate jurisdiction. The plaintiff notes that the Court has capacity to take evidence by audio visual link from witnesses located outside South Australia.
The plaintiff also observes that the practice directions of this Court permit the filing of documents electronically by interstate law firms, provided that hard copies are posted to the Registry. For these several reasons, the plaintiff submits that there are no considerations of costs, expense or inconvenience that indicate that the matter should be transferred to the Federal Court.
Consideration - s 5(1)(b)(iii)
The interests of justice criteria in s 5 of the Cross-vesting Act was considered by the High Court in BHP Billiton.[22] Gleeson CJ, McHugh and Heydon JJ observed that although an application for a transfer under s 5 will often involve evidence and debate about matters similar to those that arise when a court is asked to grant a stay of proceeding on the ground of forum non conveniens, there are differences between the two applications.[23] The context of the “clearly inappropriate forum” test as the basis for a stay was the need to justify a judicial refusal to exercise the discretion that was regularly invoked. However, an application under the Cross-vesting Act arises in a different context.[24]
[22] (2004) 221 CLR 400.
[23] Ibid at 419 [8] (Gleeson CJ, McHugh and Heydon JJ).
[24] Ibid at 420-421 [11]-[13] (Gleeson CJ, McHugh and Heydon JJ).
In BHP Billiton Gleeson CJ, McHugh and Heydon JJ adopted with approval the observation of Street CJ in Bankinvest AG v Seabrook that the consideration of the interests of justice calls for a “nuts and bolts” management decision as to which court, in pursuit of the interests of justice, is the more appropriate forum to hear and determine the substantive dispute.[25]
[25] (1988) 14 NSWLR 711 at 713-714 (Street CJ).
Against that background, Gleeson CJ, McHugh and Heydon JJ explained in BHP Billiton in the following terms the correct approach to the making of a judicial determination as to which Court was the most appropriate in the interests of justice:[26]
[14]In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.
[15]The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
[16]On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party.
[26] (2004) 221 CLR 400 at 421-422 [14]-[16] (Gleeson CJ, McHugh and Heydon JJ).

The principles stated by Gleeson CJ, McHugh and Heydon JJ in BHP Billiton were summarised by Bleby J in Cini v Pets Paradise Franchising (SA) Pty Ltd in the following terms:[27]
·    It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.
·    The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.
·    The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.
·    The interests of justice are not necessarily the same as the interests of any one party.
·    Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.
·    It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.
(Footnotes omitted)
[27] (2008) 102 SASR 177 at 183-184 [8] (Bleby J).
It is clear from BHP Billiton and Cini that the Court must ensure that the proceedings are heard in the court dictated by the interests of justice. It is not necessary to consider whether this Court is an inappropriate forum, but rather whether the Federal Court is the more appropriate forum. The answer to that question does not involve the exercise of a discretion but rather the formation of an opinion as to what is required in the interests of justice. For the preceding reasons, I reject the plaintiff’s suggestion that the defendants must prove that the Federal Court is the more appropriate forum.[28]
[28] (2004) 221 CLR 400 at 437 [71] (Gummow J).
As previously noted, the plaintiff has referred to the considerations listed by Rothman J in Whitelum.[29] The first of the matters identified by Rothman J was the place where the tort had occurred. In the present case the cause of action apparently arose in South Australia when the allegedly defective Corail Pinnacle system was used in the plaintiff’s hip replacement surgery.
[29] [2018] NSWSC 51 at [43] (Rothman J).
The defendants have submitted that if the proceedings were transferred to the Federal Court, they would be conducted out of the Adelaide Registry. The plaintiff has not suggested otherwise. In those circumstances I regard the place where the cause of action arose as being a neutral factor.
Rothman J in Whitelum also identified the residence of the parties as a relevant consideration when an opinion is being formed as to what is required in the interests of justice. The plaintiff is a resident of South Australia while the first defendant is a foreign corporation incorporated in the United Kingdom. The second defendant is a company registered under the Corporations Act 2001 (Cth). In the absence of any contrary suggestion, I proceed on the assumption that the second defendant’s place of residence, in the sense of the place where its central management and control is located,[30] is somewhere outside South Australia. Because the plaintiff has discontinued her action against the third defendant, Dr Liptak, and the fourth defendant, the Adelaide Community Healthcare Alliance Inc trading as Flinders Private Hospital, their place of residence has ceased to be relevant.
[30] De Beers Consolidated Mines Ltd v Howe [1906] AC 455 at 458 (Lord Loreburn LC).
Because transferred proceedings would apparently be conducted out of the Adelaide Registry of the Federal Court, and having regard to the matters referred to in the previous paragraph, I consider that the place of residence of the parties is also a neutral factor.
In view of the issues raised in the statement of claim, it seems likely that a significant proportion of the witnesses will be resident in South Australia. The South Australian witnesses may include the plaintiff, her employer, the surgeon Dr Liptak, other expert medical witnesses who have treated or examined the plaintiff, hospital staff and possibly others. However, it is also likely that a significant proportion of the witnesses called by the defendants will be resident interstate or overseas.
In the latter context, the defendants have suggested that the facilities of the Federal Court across Australia will facilitate the taking of evidence by audio visual (AVL) means. However, although this Court does not have access to its own courtrooms outside of South Australia, it can and does take evidence by AVL link where necessary or appropriate. Accordingly, I consider that the likely location of witnesses is also a neutral factor.
The defendants have instructed a firm of solicitors located in Sydney. They submit that it will be more efficient if that firm is able to lodge documents electronically with the Federal Court or, if necessary, at the Sydney Registry of the Federal Court. However, I note that under Division 3 of Part 2 of Chapter 7 of the Supreme Court Civil Supplementary Rules 2014 (SA) the Court has a discretion to permit the electronic lodgement of urgent interlocutory applications.[31] From 1 February 2020 a new electronic case management system (ECMS) will commence operation in the civil jurisdiction of this Court. ECMS will either require or permit the electronic lodgement of all court documents.
[31] The former Practice Directions are now described as Supplementary Rules.
In light of the matters referred to in the preceding paragraph, I consider that very little weight should be given to the claim that the Sydney solicitors will find it more expedient to lodge documents electronically with the Federal Court.
A further matter referred to by Rothman J in Whitelum was the law governing the proceedings. The defendants contend that the Federal Court is the more natural forum to determine proceedings under the TPA.
It is undoubtedly the case that the Federal Court has particular expertise in certain types of proceedings that uniquely arise under the TPA (or the Competition and Consumer Act as it is now known). By way of example, I refer to a range of matters involving restrictive trade practices under Part IV of the Competition and Consumer Act. However, the claims advanced by the plaintiff are very different to a restrictive trade practices case.
The plaintiff’s claims under ss 74B and 74D of the TPA have a great deal in common with claims based on ss 14(a) and 14(b) of the Sale of Goods Act. Both s 74B of the TPA and s 14(a) of the Sale of Goods Act are concerned with goods that are not reasonably fit for purpose. Similarly, both s 74D of the TPA and s 14(b) of the Sale of Goods Act are directed at goods that are not of merchantable quality. It is the case that the relevant provisions of the Sale of Goods Act only operate between the parties to a contract and may be excluded pursuant to s 54. In contrast, the operation of s 74B and s 74D extends beyond the parties to a particular contract and cannot be excluded. Nevertheless, despite the wider application of the TPA, the ultimate question under the two statutes is the same. That question being whether the goods were reasonably fit for purpose or of merchantable quality. I do not consider that the Federal Court is better placed to answer those questions than this Court.
The same may be said for the plaintiff’s claim for breach of statutory warranty, contrary to the Manufacturers Warranties Act and, in particular, her claims based on the tort of negligence. I also agree with the plaintiff’s observation that it is preferable for this Court to decide matters concerning the operation of the Civil Liability Act.[32]
[32] (2004) 221 CLR 400 at 490-491 [248] (Callinan J).
In light of the matters to which I have referred in paragraphs [91] to [107], I am not persuaded that is in the interests of justice for the proceedings to be transferred to the Federal Court. The fact that significant aspects of the claim will be subject to South Australian statute law outweighs any relatively minor short-term convenience to the defendants’ solicitors that may accrue if the matter were to be transferred to the Federal Court.
Conclusion
For these reasons, I find under s 5(1)(b)(iii) of the Cross‑vesting Act that the interests of justice do not require this Court to transfer the plaintiff’s claim to the Federal Court of Australia for determination. I therefore dismiss the application by the defendants