Wan, W.W.Y.L v McDonald, D.R.

[1990] FCA 114

JUDGMENT No. .. ........ ....	lie	/ ....,....,-	90-	5 ,
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C A T C H W O R D S

PRACTICE AND PROCEDURE - application to transfer to Supreme Court of Queensland - parties may also apply for leave to discontinue under the Supreme Court rules inconvenience of related suits in Supreme and Federal Courts - claim in Federal Court related to but significantly different from suit brought in Supreme Court - matter of discretion.

Wendv Wai Yiano Leuno Wan

v. Donald Robert McDonald and Ors

Qld G3 of 1990

PINCUS 3.

BRISBANE

19 FEBRUARY 1990

REGISTRY

- 3 APR 1990
FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G3 of 1990
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: WENDY WAI YIANG LEUNG WAN

Applicant

AND: DONALD ROBERT MCDONALD

First Respondent

AND: RANALD MURRAY MCDONALD

Second Respondent

AND: DOTWELL INVESTMENT PTY LTD

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	19 FEBRUARY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the amended statement of claim, if any, be filed and

served on or before 12 March 1990;

2.    the defence and cross-claim be filed and served on or before 9 April 1990;

3.     the reply and answer be filed and served on 23 April 1990;

4.    the matter will be listed for next mention on 27 April 1990 at 9.45 a.m.

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

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G3 of 1990
QUEENSLAND DISTRICT REGISTRY	1
GENEFAL DIVISION	1

BETWEEN: WENDY WAI YIANG LEUNG WAN

Applicant

AND: DONALD ROBERT MCDONALD

First Respondent

AND: RANALD MURRAY MCDONALD

Second Respondent

AND! DOTWELL INVESTMENT PTY LTD

Third Respondent

PINCUS J. 19 FEBRUARY 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the third respondent for an order that the matter be transferred to the Supreme Court of	Queensland. The proceedings in the Supreme Court are evidenced	by the writ which is exhibited to the affidavit of Mr P.F.
Whitman; briefly, the claim in that Court relates to a contract under which the plaintiff was to acquire property in Queensland and the plaintiff purported to repudiate that contract and sue for her money back.
Also in that Court, as Exhibit 1 shows, the defendant (the third respondent here), has made a cross-claim. Under the provisions of 0.30, r.1 of the rules of the Supreme Court of Queensland, the plaintiff in that Court could have discontinued without leave at an earlier stage, but at present, may discontiue the suit only by order of the Court under r.2, that is, 0.30 r.2.
If the leave which the plaintiff wishes to seek is sought and refused, then an inconvenient position will arise, in that one will have two related suits on foot; one in this Court and one in the Supreme Court. I cannot, of course, attempt to predict, and it would not be proper for me to speculate on what the Supreme Court might do if an application to discontinue is made. On the other hand, it seems to me it would be unfair to the applicant in this Court to assume that that Court would necessarily refuse an application to discontinue.
The case here is represented by what seems to me to be tightening up; but, putting it in a simple way, it is certainly a slightly diffuse statement of claim, which may need some
wider than the suit brought in the Supreme Court, and as has been pointed out, it includes two other parties, that is, although the two cases are obviously closely related, they are significantly different.
The reasons which have been given for transfer include the suggestion that, because a solicitor is a party, his conduct being in issue, the Supreme Court is the appropriate place. I can see some force in that, but it does not seem to me to be of great signficance. A more important point, I think, is that, if the Supreme Court declines to allow discontinuance, then this Court would still have a case which is related, and there could be a rather unseemly scramble to trial. I
Were it not for the difficulty about discontinuing the Supreme Court proceedings, it would seem to me clear that the case should not be transferred. The matter is, as Mr Smith pointed out, one in which federal law is involved, or may well be involved, and I do not see any particular reason why the applicant, who now wishes to sue here, should be denied the opportunity.
The only thing that concerns me is that, if I simply dismiss this application and the Supreme Court then refuses
But, as I have said, I cannot, as a matter of comity between the leave to discontinue, the situation may look rather different.
Courts, say anything to the Supreme Court which might be interpreted as a suggestion of the way in which it should exercise its jurisdiction, and I will not do that.
I simply say that, as a matter of discretion, in the circumstances which I have just outlined, the application should not in my opinion be transferred to the Supreme Court, and the I application for transfer is refused. It will be ordered that the applicant - the third respondent, Dotwell Investments Pty Ltd, pay the applicant's costs of and incidental to the

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I	application for transfer, to be taxed.
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I will direct that the amended statement of claim, if any, be filed and served on or before 12 March, defence and cross-claim four weeks to 9 April, reply and answer on 23 April,
I	and I will set the matter down before me for mention at 9.45 am on Friday, 27 April.

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: certify that this and tire	3	9 eced v,	I
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panzs are a trua copy of the reasons	fo
judgment hcrein of His Honour	I .
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Mr. Justice Pincus c c =z%=- , I m .

~?&iate	i d
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Dated 19-2- 'jD	1
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3- j

Counsel for the applicant:  M r D.K. Smith I .

Solicitors for the applicant:	Marrinan & Allen	,
I -.
Counsel for the 1st respondent:	Miss D. Osborne
Solicitors for the 1st respondent:	Breens	I _ $
;
Counsel for the 2nd & 3rd respondents:	Mr F.W. Redmond
Solicitors for the 2nd & 3rd respondents:	Whitman & CO	, .,
Date of Hearing:	19 February 1990	i
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