Trueline Investments Pty Ltd v Tricontinental Corp Ltd

[1988] FCA 832

IN THE FEDERAL COURT ) NOT FOR DISTRIBUTION

OF AUSTRALIA
WESTERN AUSTRALIA

DISTRICT REGISTRY 1

GENERAL DIVISION NO. WAG 127 OF 1988

B E T W E E N :  EDWARD JAMES BRIDE

First Applicant

and

WENDY MARGARET BRIDE

Second Applicant

and

X.M.G. HUNGERFORDS

Respondent

CORAM: LEE J.

DATE : 29 SEPTEMBER 1988

EX TEMPORE REASONS FOR JUDGMENT

I think I should deal with this now in order that

there not be any wastage of costs.

This is a motion to transfer No. WAG 127 of 1988 to

the Supreme Court of Western Australia pursuant to the

REGISTRY

provisions of 0 . 1 0 A of the Federal Court Rules which are made

pursuant to the rule-making powers of this Court to give

effect to the requirements of the Jurisdiction of Courts

JCross-Vestinq) Act 1987 (Cwth). The motion also moves for

the striking out of the statement of claim on the grounds of

tendency to cause prejudice, embarrassment or delay.

12 D E C 1990

AUSTRALIA PRINCIPAL

It is plain that the matters set out in the

statement of claim, as filed in this application, relate to a
claim for damages based upon, as far as it can be determined,
negligent conduct or breach of contract on the part of the

respondent firm which, although it is not described as a firm,

I am informed that it is such and it would be an inference to

be drawn from the pleading. There is no suggestion in the
statement of claim that any jurisdiction of this Court is to
be invoked, other than the jurisdiction vested in this Court
pursuant to the provisions of the Jurisdiction of Courts
(Cross-Vestina) Act 1987 (Cwth) and the complementary State
Act, Jurisdiction of Courts (Cross-Vestina) Act 1987 (W.A.)
which purports to vest the jurisdiction of the Supreme Court

of Western Australia in this Court.

There has been no argument addressed to me on the

constitutional validity ofhose provisions and, in

particular, the respondent has not sought to strike out the

matter on the ground that there has been no valid vesting of

jurisdiction in this Court by the above legislation. (See

ReDOrt of the Advisory Committee to the Constitutional

Commission, "Australian Judicial System", 1987 at para.3.114.)

I think it is appropriate, therefore, for me to assume that

there is a valid foundation for jurisdiction whilst that

legislation remains unchallenged. (See Boilermakers' Case (L

v. a; Ex parte Boilermakers' Societv of Australia (1956)

94 C.L.R. 254; Attornev-General	fCthL v. The Oueen (1957) 95
C.L.R. 529).)

The act of transferring a matter pursuant to the

provisions of the Jurisdiction of Courts (Cross-Vestina) Act

1987 (Cwth) is, in itself, an act in exercise of jurisdiction

(see McIntosh v. National Australia Bank Ltd. (1988) 17 F.C.R.

482). The Court has no power to transfer a matter if it has

no jurisdiction in respect of the matter.

Having assumed that there is such jurisdiction, I

now turn to the terms of the Jurisdiction of	Courts (Cross-
Vestinal Act 1987 (Cwth),	in particular s.5, to see whether it

is appropriate to transfer the proceeding to the Supreme

Court.

The provisions of para.5(4)(b) of the Jurisdiction

of Courts ICross-Vestinu) Act 1987 (Cwth) require the Court to

assess whether it appears to the Court that it is more

appropriate that the relevant proceeding be determined in the

Supreme Court. If the Court does so determine, it is obliged

by sub-s.5(4) to transfer the matter to the Supreme Court.

The Rules provide, pursuant to 0.10A r.5, that

directions be sought by an applicant, described in the Rules
as "the party", as to whether the matter should remain in this
Court or should be transferred. That requirement follows the
obligation under the Rules that the applicant plead in the
statement of claim that it relies upon the provisions of
cross-vesting legislation.

The combination of obligations under the Rules may

suggest that there is some evidentiary onus upon an applicant
who relies upon the cross-vesting legislation to show why the
matter should- remain with the Court or bring appropriate
material to the Court's attention in order that the Court may
form an opinion. That view would be consistent with the
philosophy expounded in the explanatory memorandum which
accompanied the introduction of the legislation in Parliament
to the effect that the Courts themselves were to be fairly

vigorous and robust in divesting themselves of matters brought

before them if, in the Court's opinion, they were not

appropriate matters to be retained and dealt with	in	that
Court.

In other words, there was to be no creation of

imbalance in what would have been the normal course of the

exercise of jurisdiction prior to the commencement of the

cross-vesting legislation; the primary object of that

legislation being to remove what had been described as arid

jurisdictional debates and to allow matters to go forward
without such debate when there was sufficient reason for the
matters to be continued in the chosen court. Apparently it

was the intention of the legislature that courts not be

swamped with matters that previously had been outside their

respective jurisdictions.

Bearing in mind the underlying intention of the

legislation and looking at the Rules in that context, one can

see that an applicant may bear some obligation to show why a

matter, which- could not have been instituted in the Court
prior to the cross-vesting legislation, should remain this
Court. All that has been put before me is that the applicant
wishes to resort to this Court. No other foundation has been
provided as to why it is appropriate for this Court to

continue to hear the matter or to deal with it.

In some cases the appropriateness may be perceived

on the face of the pleading, or be detailed in a short

affidavit in support, or the history of associated matters,

together with the pleading may show that it is appropriate.

But having regard to the provisions of sub-para.5(4)(b)(ii) of

the Act, I am obliged to reach a conclusion as to whether it
appears to this Court that it is more appropriate that it be
determined by the Supreme Court, given that the matter is one
that would have been within the Supreme Court's jurisdiction
only but for the cross-vesting legislation.

Having regard to sub-para.5(4)(b)(ii) it appears to

me that it is more appropriate that the matter be determined

by the Supreme Court. Put simply, the matter has no

sufficient connection with this Court in so far as any

connection may be disclosed by the contents of the statement
of claim. All that may be elicited from the pleading is that
the proceeding concerns a State matter as defined by the Act.
There is no suggestion that the interests of justice would be

better served-by continuing the proceedings in this Court.

Turning now to sub-para.5(4)(b)(i), I have material

before me by way of affidavit which indicates that the

application in this Court is related to proceedings pending in

the Supreme Court. Therefore, the provisions of sub-

para.5(4)(b)(i) of the Jurisdiction of Courts (Cross-Vestinal

Act 1987 (Cwth) apply and having regard to those provisions

again I would reach the conclusion that it is appropriate that this proceeding be determined by the Supreme Court because the pending matter arises out of the same factual base that

provides the foundation for the application commenced in this

Court.

Accordingly, having formed the opinion that it is

appropriate the the proceeding be determined by the Supreme
Court, the Court is required to order that the proceeding be
transferred to that Court.

l .

is, therefore, It unnecessary perhaps nd

inappropriate to make any directions in respect of

interlocutory steps to be undertaken in the matter. There are

provisions for interlocutory steps to be taken before a

proceeding is transferred, but such interlocutory directions
may be more appropriate in cases where the appropriateness of
transfer becomes evident after proceedings are under way

rather than cases in which the need for transfer is patent

immediately upon - commencement of the proceeding.

Therefore, I consider that the interlocutory issues

of whether the applicant is to be given leave to represent the
second applicant, and whether the statement of claim should be
struck out are matters that should be determined by the court

that is to exercise the ultimate jurisdiction in respect of it

and I should not presume to take any steps in that regard.

They are matters related to the fundamental conduct of the
action in the Supreme Court and it should be the prerogative

and preserve of that court to apply its own determinations to

those questions.

Therefore, I will decline to make any orders in the

terms requested in Item 2 of the motion, but order that the

matter be transferred to the Supreme Court of Western

Australia and that costs be costs in the cause.

I certify that the preceding

seven (7) pages are a	true copy of the
Reasons for Judgment of his	Honour Mr Justice Lee.
Associate:

The First-named Applicant appeared in person.

Counsel for the Respondent:	Mr R. Pringle
Solicitors for the Respondent:	Freehill, Hollingdale E, Page

Date of Hearing: 29 September 1988 Date of Judgment: 29 September 1988