Spencer, R.B. v Hugall & Hoile Ltd

[1988] FCA 608

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JUDGMENT [email protected],!h..&$-

C A T C H W O R D S

PRACTICE AND PROCEDURE -	cognate proceedings pending in District
Court -	application to restrain respondent from taking further

steps in those proceedings	- relevant considerations -	restraint
order on condition that applicant pay	respondent's	costs thrown

i	away - no question of principle involved.
ROGER BOYD SPENCER v HUGALL F, HOILE LIMITED
HUGALL & HOILE LIMITED v STERILINE IRRIGATION PTY LTD
NO. WAG 24 of 1988
PRENCH J. PERTH 17 OCTOBER 1988
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IN THE FEDERAL COURT )

OF AUSTRALIA 1

WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. WAG 2 4 of 1 9 8 8

B E T W E E N :  SPENCER BOYD ROGER

Applicant

and

HUGALL & HOILE LIMITED

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Respondent

[-;

HUGALL & HOILE LIPIITED

Cross-Claimant

and

STERILINE IRRIGATION PTY LTD

i Cross-Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	17 October 1 9 8 8
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1. The respondent be and is hereby restrained until the

hearing and determinatlon of this application r further

order from taking any further steps in action number F -

4 0 4 5 of 1 9 8 5 in the District Court of Western Australia.

2 . The pleadings, particulars and discovery given in the

District Court action be, so far as they are applicable,

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treated as pleadings, particulars and discovery for the

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purposes of the respondent's cross-claim against the I

applicant in this action.

3 .	The applicant pay the respondent's costs thrown away	in
these proceedings and in the District Court action	by
reason of the preceding orders.
4 .	There be liberty to apply for further directions.
5.	The costs of this motion be in the cause.

Note: Settlement and entry of orders 1s dealt with in

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Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT )

OF AUSTRALIA 1

WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)

GENERAL DIVISION 1 NO. WAG 24 Of 1988

B E T W E E N :  ROGER BOYD SPENCER

Applicant

and

HUGALL & HOILE LIMITED

Respondent

HUGALL & HOILE LIMITED

Cross-Claimant

and

STERILINE IRRIGATION PTY LTD

Cross-Respondent

CORAM :	FRENCH 3 .
17 October 1988

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REASONS FOR JUDGNENT

On 21 March 1988 for reasons then published, I dismissed

a motion by the appllcant seeking to restrain the respondent from

taking further steps in cognate proceedings in the District Court.

At the same time I dlsmlssed a motion on the part of the

respondent seeking to stay these proceedings.

On 7 October 1988, the applicant again filed a motion

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seeking to restrain the respondent from proceeding with the

District Court action.	At the time that the restraint and stay
motions were dismissed in march, a	statement of claim had been

filed,	but no defence. On 22 April, the	applicant	filed an
extensively amended statement of claim.	Directions given on	2	.-,
May 1988 required the respondent to file	its defence by 16 May and	h ,	,'
for discovery and inspection by	27 June 1988. The	respondent's	. .

solicitors failed to comply with the directions and indeed nothing

further happened in these proceedings until the next listed

directions hearing on 11 July. At that time I made further orders

giving leave to the applicant to file a re-amended statement of

claim by 1 August and requiring the respondent o file and deliver

! any defence and cross-claim by 15 August. Discovery was to be

given by 12 September and the matter was listed for further

directions on 27 September.

On 11 July the respondent filed a motion, returnable on

21 July, to strike out certain paragraphs of the amended statement

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of claim as it then stood. That was adjourned to 11 August. In	I .-
the meantime, on 2 August the re-amended statement of clam, again substantially re-written, was flled. On 11 August the strike out

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motion was dismissed and the time for filing a defence and

cross-claim was extended to 1 7 August.	On 26 August a minute of
proposed consent orders was	filed extending the time to flle and

deliver any defence and cross-claim to 26 August. Discovery was

extended to 23 September and the	directions hearing re-listed for
10 October. That order was made (albelt not until 14 September).	!

In the meantime a document entitled "Defence and Counter-claim"

was filed on 6 September. Also separately filed at that time was a cross-claim against a new party, Steriline Irrigation Pty Ltd.

A reply and defence to the misnamed "Counter-claim" were filed on

21 September and a notice of appearance filed by Steriline on 7

October. On 10 October directions were given up to and including discovery in the cross-claim and	listlng of the matter for further
directions on 16 January 1989.

In support of the motion two affidavits have been sworn

by Martin Levit, a solicitor employed with the firm acting for the

applicant. The flrst of these makes the point hat he

respondent's defence and "counter-claim'' is based on exactly the

same cause of action as the proceedlngs in the District Court.

The respondent, it appears, has entered the action in the District

Court for trial against an unsuccessful attempt by the applicant to countermand the entry. The applicant's counter-claim in the

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District Court proceedings seeks	damages	for breach of warranty
and misrepresentation, the total	of which	is not disclosed, but
some $35,700 of which is	set out in particulars.	In a further
affidavit, Mr Levit indicated that	his client had sustained a	loss
of $306,000	flowing from the	matters pleaded in the re-amended

statement of claim, which it is said, wlll be reflected in the

counter-claim in the District Court. That is a figure well

outside the monetary limit on the jurisdiction of that court.

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In an affidavit filed for the respondent, its solicitor
sald that he was informed by an officer in the Registry of the

District Court that In the event of there belng no resolution of

the dispute between the two parties	at a pre-trial conference, the
action will be listed for hearing	in November or December 1988.

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Various other statements were	made by counsel from the bar table
relating to exchanges said	to have occurred between the two firms

acting for the parties, but these I disregard as they are

unsubstantiated by evidence.

In my opinion the position has changed since the order

of 21 March 1988, in	particular by the	introduction of a
cross-claim against Steriline Irrigation	Pty Ltd.	The applicant

contends that the money value of its counter-claim in the District

Court will exceed the ]urisdiction of that court and will

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i	therefore require the matter	to be heard in the Supreme Court, if
not in this.

The introduction of the additional party, and the

likelihood that the proceedings will be unable to be tried in the

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District Court, does add force to the	argument	hat	all	i
proceedings should now be disposed	of in this	Court.	I	am

prepared to accede to the application for a restraint on

proceedings continulng in the District Court, but only on the

basis that the applicant will meet any costs thrown away as the

result of his belated commencement of proceedings in this Court.

I will glve such directions	as I can to enable the parties to make
use of such preparation	as has already gone on in the District
Court, at least for the	purposes of the "counter-clalm" in these

proceedings. To that end I propose to make the following orders:-

1. The respondent be and is hereby restrained until

the hearing and	determination of this appllcation
or further order from	taking any further steps in

action number 4045 of 1985 in the District Court of

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Western Australia.

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I 2 . The pleadings, particulars and discovery given in

the District Court action be, so far as they are

applicable, treated as pleadings, particulars and

discovery for the purposes of the respondent's

cross-claim against the applicant in this action.

3 . The applicant pay the respondent's costs thrown

away in these proceedings and in the District Court

action by reason of the preceding orders.

4 .     There be liberty to apply for further directions.

5. The costs of this motion be in the cause.

I certify that this and the preceding

four ( 4 ) pages are a true copy of

the Reasons for Judgment of his Honour

Justice French.

Associate: %L

Counsel for the Applicant: Mr S. Owen-Conway

Solicitors for the applicant: Mossensons

Counsel for the Respondent:	Mr Snell
Solicitors for the Respondent: Blake	Dawson Waldron

Date of Hearing:  13 October 1988

Date of Judgment: 17 October 1988