Walker, J.R. v Ford Motor Company of Australia

[1991] FCA 520

Re: JOHN JOSEPH WALKER and ROBIN FAY WALKER
And: FORD MOTOR COMPANY OF AUSTRALIA LIMITED; STILLWELL TRUCKS PTY LIMITED and
FORD CREDIT AUSTRALIA LIMITED
No. G404 of 1991
FED No. 520
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice and Procedure - claim for, inter alia, damages for personal injuries - common law negligence claim and other statutory claims - whether proceedings should be transferred to the Supreme Court of New South Wales.

HEARING

SYDNEY

#DATE 29:8:1991

Counsel and Solicitors for Applicants: R.F. Driver instructed by

Salmon Connolly and Co.

Solicitor for First Respondent : D. Greenhalgh

No appearance for Second Respondent

Solicitor for Third Respondent : S.G. Klimt

ORDER

That the proceeding be transferred to the Supreme Court of New South Wales.

Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By their application, the applicants have sought, amongst other, the following relief:

"(a) Damages, including damages for personal injuries

occasioned to the First Applicant's back and hands, as a result of the defective nature of the said truck.

(b) A replacement truck.

(c) The agreement between Ford Credit Australia Limited be set aside, declared void ab initio and all monies paid by the Applicants be refunded."

1. By their statement of claim, the applicants have sued on several causes of action, including (1) ss.52, 53, 70, 71, 73, 73A, 74, 74A, 74B, 74D and 74G of the Trade Practices Act; (2) certain provision of the Fair Trading Act 1987 (N.S.W.); and (3) common law negligence. Although not specifically pleaded, I was informed by counsel for the applicants that the proceeding arises out of an accident when, it is alleged, the brakes on the applicants' truck failed and the truck left the road. It is alleged that the truck was damaged and that the first applicant suffered shock, back injuries and damage to both hands.

2. I accept that, by virtue of the cross-vesting legislation, this Court has jurisdiction in the whole matter but, for the reasons I gave in Down to Earth Spring Water Pty. Limited v State Bank of New South Wales, 19 August 1991, unreported, it does not follow that it is appropriate that this Court now exercise that jurisdiction. Similar considerations apply, in my view, to the question whether a transfer of the matter should be made pursuant to s.86A of the Trade Practices Act.

3. In my opinion, it is appropriate, having regard in particular to the circumstance that there appears to be a claim for personal injuries, that this matter be dealt with by an appropriate State Court, in this case the Supreme Court of New South Wales, which has traditionally exercised jurisdiction in this type of litigation.

4. I propose to order that the proceeding be transferred to the Supreme Court of New South Wales.