Tabain, J.P. v Dalgety Bennetts Farmers Ltd

[1990] FCA 800

THE FEDERAL COURT OF A U S T U )

)

NEW SOUTH W- DISTRICT REGISTRY ) No G 604 of 1990

1

- )

BETWEEN:	JAMES PETER TABAIN & Or.
Applicant

m:	DALGETY BENNETTS FARMERS LIMITED
&AIL
Respondent

HILL J	RECEIVED
SYDNEY	- 1 MAR 1991
14 NOVEMBER 1990	FEDERAL COURT OF

AUSTRALIA

PRINCIPAL REGISTRY

EX TEMPORE REASONS FOR J -

The respondents to the proceedings commenced in this court by James Peter Tabain and Sandra Jean Tabain move the court for orders that the proceedings in this court be stayed permanently, or pending the determination of proceedings number 50623 of 1990 presently in the Commercial Division of the Supreme Court of New South Wales. By way of alternative order the motion seeks an order that the proceedings be transferred to the Commercial Division of the Supreme Court of New South Wales pursuant to 8.54 of the Jurisdiction of Courts

October 1990, the respondents commenced proceedings against

It would appear that on 17 September 1990 Dalgety

Bennetts Farmers Limited and Dalgety Farmers Limited

("Dalgety"), the respondents in the proceedings in this court,

through their solicitor threatened legal proceedings against the applicants in respect of a Dalgety trading account. On 12

the applicants for recovery of the amount then owing on that account, together with, I assume, interest. It appears from the affidavit material before me that some attempts were made to effect service of the Supreme Court proceedings. There was correspondence with solicitors for the applicants who ultimately were replaced by the applicants' present solicitors. Certainly it is not disputed that on 23 October 1990, when a conversation occurred between the solicitors for the parties, the applicants were aware of the Supreme Court proceedings. Nevertheless, prior to service of the Supreme Court proceedings, the applicants commenced the proceedings in this court.

According to the amended statement of claim, as filed in this court on 12 November 1990, the applicant alleges that there were, in the course of transactions that occurred between it and the respondents, breaches of contract, a

contravention of 8.52 of the B f - 1974, or 8.42

of the Fair Act; 1987, in that there were

representations which were false and misleading, as well as other misleading and deceptive conduct and breach of warranties.

The claim is stated to be a claim for damages, therefore, for breach of contract, damages for breach of 8.52, orders under 8.87 of the Trade Practices Act 1974 and/or damages for breach of S. 42 of the Fair W n a Act 1987. The

application and statement of claim in this court was served on the day it was issued. Service of the Supreme Court proceedings on the applicants was effected on 25 October 1990.

It appears that at a directions hearing held on Friday, 2 November 1990, his Honour, Giles J, in the Supreme Court made orders requiring the applicants in the present proceedings to file and serve points of defence and cross-claim against the respondents in the present proceedings on or before 12 November 1990; the defence to include a statement of the items in the account which are in dispute. It was further ordered that Dalgety's file and serve points of defence to any cross-claim on or before 19 November 1990 and the proceedings were then stood over until 23 November 1990.

I was advised from the bar table that the applicants
in the present proceedings have filed a cross-claim in the

Supreme Court proceedings essentially in the same form as the

amended statement of claim in this court. The parties are in

agreement that there can be no real advantage to one party or

the other in terms of timing. It seems quite clear that neither court could hear the matter now until after the vacation. Nor is any forensic advantage obvious between the one court and the other.

It was submitted by counsel for the applicants that the iesues raised in the amended statement of claim were to some extent novel in that they raised the question of the relationship between a pastoral house and its customers in the context of the u a d e Practices BEfc 1974 and the suggestion, at least implicitly, was that this made the proceedings more appropriate to be heard in this court than in the Supreme Court. To the extent that novelty is said to arise by virtue of the lack of any statement in courts as to the appropriate duty of care that may exist between a pastoral house and one of its customers, I pointed out to counsel that the present proceedings do not seek damages in negligence for breach of a duty of care although it is true that the amended statement of claim does allege the existence of such a duty.

It then however leaves the matter in the air. It is

obviously desirable that both the claim by Dalgety against the applicants, and the claim by the applicants against Dalgety be heard together so that judgment be not given in the one without the other being dealt with as a cross-claim.

At present there is no cross-claim to the proceedings in this court brought by Dalgety so that if the proceedings were to remain in this court it would be necessary for directions to be given to the respondents to file any cross-claim that it seeks to make and for it to give particulars of that cross-claim. These are matters that have already been attended to in the Supreme Court.

In these circumstances it seems to me that the balance of convenience lies with allowing the matter to remain in the Supreme Court rather than proceeding afresh in this court.

I order that the present proceedings be dismissed with costs including costs of the motion payable by the applicants to the respondents.

I certify that this and the
preceding four (4) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice

Associate:

Counsel and Solicitors	S.W. Gibb
for Applicant:	instructed by Macpherson Greenleaf & Associates

Counsel and Solicitors	P.H. Greenwood
for Respondent:	instructed by Minter Ellison
Date of Hearing:	14 November 1990
Date Judgment Delivered:	14 November 1990