Sita (Qld) Pty Ltd v State of Queensland

[1999] FCA 1178

FEDERAL COURT OF AUSTRALIA

Sita (Qld) Pty Ltd v State of Queensland [1999] FCA 1178

PRACTICE AND PROCEDURE – jurisdiction of Court - whether colourable federal claim – whether matter correctly commenced should remain in Court

Federal Courts (State Jurisdiction) Act 1999 (Qld)

Re Wakim (1999) 73 ALJR 839
Burgundy Royale Pty Ltd v Westpac (1987) 18 FCR 212

SITA (QLD) PTY LTD AND HARLINGDALE PTY LTD v STATE OF QUEENSLAND AND QUEENSLAND RAIL AND THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND) AND SURFSIDE BUSLINES PTY LTD AND CLARK’S LOGAN CITY BUS SERVICE

DOWSETT J
24 AUGUST 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1999

BETWEEN:

SITA (QLD) PTY LTD
First Applicant

HARLINGDALE PTY LTD
Second Applicant

AND:

STATE OF QUEENSLAND
First Respondent

QUEENSLAND RAIL
Second Respondent

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
Third Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
Fourth Respondent

SURFSIDE BUSLINES PTY LTD
Fifth Respondent

CLARK'S LOGAN CITY BUS SERVICE
Sixth Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

24 AUGUST 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The second respondent, Queensland Rail, cease to be a party to these proceedings.

2.The applicants pay the second respondent's costs of the proceedings, including the costs of the application today, and all reserved costs.

3.The motion be dismissed.

4.The applicants pay the respondents' costs of the motion. 

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	QG 95 OF 1999

BETWEEN:

SITA (QLD) PTY LTD
First Applicant

HARLINGDALE PTY LTD
Second Applicant

AND:

STATE OF QUEENSLAND
First Respondent

QUEENSLAND RAIL
Second Respondent

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
Third Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
Fourth Respondent

SURFSIDE BUSLINES PTY LTD
Fifth Respondent

CLARK'S LOGAN CITY BUS SERVICE
Sixth Respondent

JUDGE:	DOWSETT J
DATE:	24 AUGUST 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a motion for a declaration that the Court is without jurisdiction to entertain this action. It is brought for the purposes of s 11 of the Federal Courts (State Jurisdiction) Act 1999 (Qld) to enable the Supreme Court to assume jurisdiction in the matter. There is an alternative motion pursuant to the cross-vesting legislation. In effect the motion raises the question of this Court’s jurisdiction with respect to the non-federal claims presently encompassed in the proceedings. I have previously considered the statement of claim at great length and delivered a reserved judgment on 15 June 1999. For that reason I am not minded to give detailed reasons in respect of the present application. The other matter which leads me to this unusual boldness is that the respondents to the motion, who are the respondents in the action, all oppose it. The applicant has also conceded that probably, the appropriate outcome is that this Court continue to exercise jurisdiction, although counsel has sought to put before me all of the arguments to the contrary in the hope that this will forestall any future mischievous attempt to rely on jurisdictional questions.

2. The proceedings can best be described in shorthand form as claims by the applicants for relief in respect of loss of their rights to operate bus services between Brisbane and the Gold Coast. Their claim is put in a number of ways, one of which is a claim for damages against the fifth respondent based upon s 52 of the Trade Practices Act 1974 (Cth). There is another claim under s 51AA of the Trade Practices Act for unconscionable conduct which claim is, as I understand it, made against Queensland Rail.  The factual basis of all claims is a determination by the Director General of the Department of Transport to apply a statutory regime (prescribed by the Transport Operations (Passenger Transport) Act (1994) (Qld) (the “TOPT Act)) to road transport operators plying between Brisbane and the Gold Coast.  It is said that the Act has been used for an improper purpose, namely to facilitate the commercial success of the Queensland Rail service between those centres.  The Director-General’s actions are also challenged for other reasons.  It is an essential aspect of the applicants' claim that they have been deprived of the right to operate bus services between Brisbane and the Gold Coast.  A beneficiary of this fact has been the fifth respondent who also operates such a service.  The applicants also allege that they entered into an agreement with the Queensland Government pursuant to which they were to give up many, if not all, of their claims against it and associated parties arising out of such conduct. 

3. The claim against the fifth respondent under s 52 of the Trade Practices Act is that it wrongfully indicated to one of the applicants that it could continue to operate on the Brisbane-Gold Coast route.  It is tolerably clear, in my view, that such a claim would, at least at the point of assessing damages, involve a close examination of the other claims and their factual bases.  In those circumstances, as I understand it, having regard to the decision of the High Court in Re Wakim (1999) 73 ALJR 839, especially per Gummow and Hayne JJ at pp 869 and 870, there is but a single matter for adjudication in this case. I should say by way of completeness that I have considered the matter as it was constituted at the time at which I gave the reasons to which I have previously referred, although the applicants have subsequently indicated an intention to discontinue some of their claims. They would, in any event, probably have been struck out pursuant to my earlier decision. To consider the matter as it was previously constituted appears to be consistent with the decision of the Full Court of this Court in Burgundy Royale Pty Ltd v Westpac (1987) FCR 18 212 at 219 where the Court said:

   In principle the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits.  In that situation it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim.

4. As I understand it, the mere fact that some aspects of the claim, including some federal aspects, may have been discontinued, or may be discontinued does not deprive the Court of its accrued jurisdiction once that jurisdiction has attached. In the circumstances I am not persuaded that this Court lacks jurisdiction in respect of the non-federal aspects of the case. They are attached and therefore within jurisdiction. I decline to make a declaration of the kind contemplated by s 11 of the Federal Courts (State Jurisdiction) Act.  As to the question of cross-vesting, the only reason advanced in favour of that is the possibility that there may be doubts about the jurisdiction.  However I have resolved those doubts. 

5. If I am wrong, then the only consequence will be that at some later stage, the proceedings will have to be transferred to the Supreme Court.  But as nobody is asserting that position, this seems unlikely.  There would obviously be quite serious sanctions in costs if any of the parties were to adopt a different view to that which they have adopted today.  In any event the action has proceeded for a year here, and it has been ventilated in some detail.  In those circumstances I cannot see that the convenience of the parties generally would be served by cross-vesting the matter.  I refuse that application.

6. I order that:

   (1)Queensland Rail cease to be a party to these proceedings;

   (2)the applicants pay the respondent's costs of the proceedings, including the costs of the application today, and all reserved costs.

7. With respect to the other costs of today, my understanding of the position is that when the matter was before the Court on a previous occasion, the applicants indicated that as a result of the decision of the High Court in Re Wakim, the Court was without jurisdiction. At that stage there may well have been some agreement amongst the parties who were then present that if that were the case, then the matter should go to the Supreme Court. I indicated, however, that I was not willing to make an order of the kind contemplated by s 11 of the Federal Courts (State Jurisdiction) Act unless I was satisfied that there was, in fact, no jurisdiction, including accrued jurisdiction.  As far as I am concerned the matter was left on that basis.  I certainly did not indicate that such an application should be brought, although I did indicate that if an order were required, then it would be necessary that there be an appropriate formal application.  In those circumstances, as far as I can see, it is the applicants who have determined that there should be an application, and they appear to be the only parties who have ever asserted that there was any problem with jurisdiction.  Although I can understand the uncertainty caused by the Wakim decision, in the end it was a matter to be determined by reference to the claims and the decided cases on the accrued jurisdiction.  If the applicants wrongly came to the view that there was some doubt about the matter, then, as between them and the other respondents, they should pay the costs.

8. I therefore order that:

   (3)the motion be dismissed; and

   (4)the applicants pay the respondents' costs of the application. 

9. That order, of course, relates to all applicants other than Queensland Rail.  I have already dealt with its costs.  The action will otherwise be adjourned for further consideration by way of directions on - it looks like the best we can do is 8 October.  Maybe we could do it on 24 September.  Let's make it 24 September. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             24 August 1999

Counsel for the Applicant:	Mr B Porter
Solicitor for the Applicant:	MacGillivrays
Counsel for the First-Fourth Respondent:	Mr P J Flanagan
Solicitor for the First-Fourth Respondent:	Crown Law
Counsel for the Fifth Respondent:	Mr B O’Donnell QC Mr D Ryan
Solicitor for the Fifth Respondent:	Hill Thompson & Sullivan
Counsel for the Sixth Respondent:	Mr J Lee
Solicitor for the Sixth Respondent:	Goodfellow & Scott
Date of Hearing:	24 August 1999
Date of Judgment:	24 August 1999