Spencer, Roger Boyd v Hugall and Hoile Ltd

[1988] FCA 118

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IN THE FEDERAL COURT	)	LIMITED	DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIAN	1
DISTRICT REGISTRY	1
GENERAL DIVISION	)	NO. WAG	2 4 Of 1988

B E T W E E N :  ROGER BOYD SPENCER

Applicant

and

HUGALL & HOILE LIMITED

Respondent

JUDGE MAKING ORDER:	FRENCH J.
n n m n	"-*L or GREZR:	2: HARCE 199e
WHERE MADE:	PERTH
THE COURT ORDERS	THAT:

A. AS to the respondent's motion dated 10 March 1988.

1.	The	motion	is dismissed.
2.	There	will be no order	as to costs.

B. As to the applicant's motion filed 1 March 1 98 8.

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1. The motion is dismissed.

2 .	The applicant is to pay half	the respondent's costs of
the motion.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

J

IN THE FEDERAL COVRT

OF AUSTRALIA )

WESTERN	AUSTRALIA?	1
CIISTRICT	REGISTRY	)

GENEPAL D I V I S I O I ! ) !V. KAC 21 oE 19.18

B E T W E E N :  ilOC.EP BOYD SPENCER

Applicant

and

HUGALJd & HOILE LIMITED

Respondent

CORAM:  FRENCH J.
21 March 1988

REASONS FOR DECISION ON MOTIONS RELATING TO

CONCURRENT PROCEEDINGS IN THE DISTRICT COURT

Roger Boyd Spencer is a farmer at Serpentine in Western

Australia. He says that on 23 May 1985 he leased Erom Esanda

Limited a Steriline Lateral Move Irrigator. He was induced, he says, to enter the lease by representations made on behalf of the vendor of the irrigator, Hugall 6 Hoile Ltd.

The alleged representations related to delivery and commissioning dates. Further, Spencer complains that the

September 1985 and March 1956 and that attempts by Hugall 6 Hoile	irrigator, after delivery, broke down on varlous occasions between
to repair it were ineffective and carelessly carried out. He
claims damages under s . 8 2 of the Trade Practices Act and at common
law for fraud, negligence and breach of warranty.

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The proceedings have not yet advanced beyond the point of delivery of a statement of clalm and two competing motions whlch Ea11 for determination today relatlng to cognate proceedlngs commenced 0 x 7 Hugall & Roile rn the Distrlct Court on 17 Septenbez

1985. By that action, the company claimed from Spencer the sum of $8,694.00, being the balance of the purchase price said to be due and owing to it in respect O E his purchase of the irrigator. ~t

also claimed Interest €or late payment of	$40,00O,-said to be part
of the purchase price.

The statement of claim in that action is dated 18

October 1985 and a defence and counterclaim were filed on or	about
31 October. The defence as	filed initially, accepted that the

relevant agreement was for the purchase of the irrigator from
Hugall & Hoile. It raised a set-off by way of damages Incurred
through non-fulfilment of warranties embodied in the

representations relating to delivery and commissioning and

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negligent misrepresentation arising out of the same facts.	A
counterclaim was raised on the same basis, seeking damages	in

excess of $35,000.00. No claim was made for breakdowns or

careless repairs and it is to be noted that as set up in the

application before this Court, these largely	occurred after the
institution of the District Court	action.

The Distrrct Court action has progressed at a leisurely

pace.	An amended defence and counterclaim were delivered on 19
June 1986 embodying a plea of the lease agreement with	Esanda.

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D i s c o v e r y w a s g l v e n b y H u g a l l h Hol le on 2 9 J u l y 1 9 8 6 and by

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I S p e n c e r o n 28 A u g u s t 1 9 8 6 . I n t e r r o g a t o r l e s d e l i v e r e d by Hugall &

tlolle o n 1 6 J u n e 1937 weze answered on 3 September- 1957.

A c c o r d i n g t o t h e s o l i c i t o r s f o r H u g a l l h Hol le t h e

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m a t t e r is now r e a d y f o r t r l a l I n t h e Dis t r ic t C o u r - t . S p e n c e r ' s

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i n t e n t l o n t o I n s t i t u t e a p p l i c a t i o n a n i n t h i s C o u r t was

1 Eoreshadowed i n a l e t t e r d a t e d 4 November- 1985 from h i s s o l i c i t o r s

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t o t h e s o l i c l t o r s €or H u g a l l h Hoile. T h a t l e t t e r was i n t h e

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€allowing terms:-

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! "Our c l i e n t h a s i n s t r u c t e d u s to issue p r o c e e d i n g s i n t h e

F e d e r a l	Cour t	and	Counse l	is	s e t t l i n g	t h e	S t a t e m e n t	o f
C l a i m .

! Will y o u a c c e p t s e r v i c e o f t h e Writ or wou ld your c l i e n t

l p r e f e r to b e s e r v e d d i r e c t l y ?

1 Upon t h e commencement of t h e Federal C o u r t a c t i o n , w o u l d

y o u r c l i e n t be p r e p a r e d to v o l u n t a r i l y s t a y a n y f u r t h e r

p r o c e e d i n g s i n the Distr ic t C o u r t ? I f n o t , w e s h a l l

h a v e t o make a p p l i c a t i o n f o r a s t a y . "

T h e s e t t l i n g p r o c e s s r e f e r r e d to i n t h e l e t t e r d i d n o t

l e a d t o t h e i n s t i t u t i o n o f an a p p l i c a t i o n I n t h i s C o u r t u n t i l 3

F e b r u a r y 1988. S p e n c e r now moves to r e s t r a i n H u g a l l & Hoile from

p r o c e e d i n g i n t h e District C o u r t u n t i l f u r t h e r o r d e r . H u g a l l &

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Hoile seeks to res t ra in S p e n c e r from f u r t h e r p r o c e e d i n g i n t h i s

l C o u r t . T h e o r d e r s o u g h t i n t h a t r e g a r d is i n a p p r o p r i a t e , b u t i n

I s u b s t a n c e a s was made c l ea r i n a r g u m e n t , Hugall & Hoile asks for a

i	s t a y	of	t h e F e d e r a l C o u r t a p p l i c a t i o n .
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-7- I '----'------. b .

The damaqes souqht in thls Court as set out in the

statement of claim, considerably exceed the monetary limit of the

Distrlct Court ~ur~sdiction, which is $80,000.00 €or matters other

than claims arlsing out of personal injuries.

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The point of departure f o r cases such as the present 1s

to he found in the principles expressed In the ~udgment of i.lason,

Brennan and Deane JJ. ln Stack v Coast Securities (No. 9) Pty Ltd
(1983) 154 CLR 261 at 298:-

"The first and paramount consideration in the exercise of this dlscretion is to do what is best i r k Lhe interests of the litigants. In thls respect the Federal Court can resolve the entlre controversy; the Supreme Court cannot

do so because the second limb of s.86 of the Act stands

in its way. The court which can resolve the entire

controversy has obvious nadvantage. Generally speaking, its determination of all the issues will be

made more effectively and more expeditiously and at less

expense than the resolution of the controversy which depends on determinations made by two courts in separate proceedings In which the issues are necessarily fragmented .

To offset this advantage offered by the Federal Court

powerful countervailing reasons need to be shown. For example, it may appear that the federal issue is raised at such a late stage in the Supreme Court proceedings that it would be a waste of time and lead to needless expense and inconvenience not to proceed to a hearing

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i	in that Court. Or it may appear that the federal issue
I	is so insubstantial or removed from the non-federal
issues that the supreme Court should proceed with the

I ' determination of those issues. It may even appear that

the federal issue is but one of many issues making up the entire controversy and that it is indistinguishable from one of the non-federal issues in the sense that the resolution of one necessarily leads to a resolution of the other. In such a case there will be stronger ground

for allowing the action to proceed	in the Supreme
Court."

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5.

This Court ha5 the ~urlsdlctlon to resolve the cntlre controversy between the partles. The Dlstrict Court does not, even allowing for Yecent amendments to the Trade Practices Act. It lacks that jurlsdictlon because its monetary l m i t is exceeded by the damages claimed by the applicant. Proceedings ln the District Court have reached the polnt where the matt.r is ready to be entered for trial.

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It 1s clear that some, and possibly conslderable,

inconvenience will flow from the proceeding going ahead in the

District Court without a determination of the applicant's claim as

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I pleaded in this Court. The respondent was prepared to consent to a restraint In relation to the District Court proceedings on the applicant's agreement to pay its taxed costs to date. This has not been forthcoming.

As to the delay in instituting the application in this

Court, I was informed that thrs was due in part to the need for the applicant to apply for and secure legal aid. There is nothing

on affidavit in that regard and, In any event, it could hardly

explain the two year delay which has occurred.

In my opinion it would be unfair to prevent the

respondent from proceeding in the District Court and I will make

no order restraining it in that regard. At the same tlme the

clalm in this Court is of considerable magnitude and, I thlnk, should be allowed to progress to the point of trial wlthout

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I f t h e ~ e s p o n d e n t o b t a l n s ~ u d g m e n t i n t h e D ~ s t r l c t

c o u ; t , i t may Se o p e n t o t h e a p p l i c a n t t o a p p l y for a stay o f

e x e c u t i o n	t h c z u	p u n d l n g	t h e	: e s o l u t i o n	O E	h l s c l a i m .	I f	t h e
a p p l l c a n t	p z o c e e d s	w ~ t h	h i s	Dresent	s e t - o f f	and	c o u n t e r c l a i m	I n

t h e	Dlstzict	C o u z t ,	h e	may	f l n d	t h a t	q u e s t i o n s	of	i s s u e	e s t o p p e l
a n d	p o s s l b l y	res	~ u d i c a t a ,	a r e	--alsed	I n	a	s u b s e q u e n t	h e a r i n g	i n

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t h i s c o u ~ t . B u t a g a i n t h a t is a mattez €0;- him and h i s a d v i s e r s .

I n t h e e v e n t , I p r o p o s e t o d i s m i s s b o t h m o t i o n s . I will h e a r from

t h e p a r t i e s a s to costs.

I c e r t i f y t h a t t h i s a n d t h e p r e c e d i n g

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E lve ( 5 ) p a g e s a r e a t r u e c o p y of t h e

Reasons fo r D e c i s i o n of h i s Honour

J u s t i c e F r e n c h .

,%h

Associate:

Date :

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Counsel	€or t h e A p p l i c a n t :	:	M	P.J.	W i l l i a m s
S o l i c t o r s	€or t h e	A p p l i c a n t :	Mossenson	Szklarz h	Co.

C o u n s e l for t h e R e s p o n d e n t : Mr R.W. R i c h a r d s o n

Sol ic i tors f o r t h e R e s p o n d e n t : Blake Oawson Waldron

Date of Hearing:  1 5 March 1988

D a t e of Judgment: 2i Marcn i9B6

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