Willoughby v Clayton Utz - [2003] FCA 120

FEDERAL COURT OF AUSTRALIA
Willoughby v Clayton Utz [2003] FCA 120
PRACTICE AND PROCEDURE – jurisdiction – application for transfer to Supreme Court – no reliance on federal claim – continuing claims all non-federal – proceeding incapable of having been instituted in Federal Court – foreshadowed constitutional argument if Federal Court exercises jurisdiction to determine its jurisdiction – possibility of delay and costs not relevant to substantive issues - interests of justice favouring transfer
Trade Practices Act 1974 (Cth) ss 10, 52, 82(2), 86A, Pt IVA
Fair Trading Act 1987 (WA) s 10
Judiciary Act 1906 (Cth) s 78B
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4), 5(4)(b)(ii), 5(4)(b)(ii)(D), 5(4)(b)(iii), 5(7), 10
Federal Court Rules O 42, r 4(1)
Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 discussed
Carlton & United Breweries Ltd v Castemaine Tooheys Ltd (1986) 161 CLR 543 referred to
Fencott v Muller (1983) 152 CLR 570 referred to
BERYL FRANCES WILLOUGHBY, JOHN FRANCIS WILLOUGHBY, MICHAEL STEPHEN WILLOUGHBY and MARK ROBERT WILLOUGHBY
WAG 198 of 1998
RD NICHOLSON J
28 FEBRUARY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 183 OF 1998

BETWEEN:

BERYL FRANCES WILLOUGHBY
JOHN FRANCIS WILLOUGHBY
MICHAEL STEPHEN WILLOUGHBY
MARK ROBERT WILLOUGHBY
APPLICANTS

AND:

CLAYTON UTZ
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

28 FEBRUARY 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1. This proceeding be transferred to the Supreme Court of Western Australia.
2. The applicants pay the respondent’s costs of the application for transfer.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 183 OF 1998

BETWEEN:

BERYL FRANCES WILLOUGHBY
JOHN FRANCIS WILLOUGHBY
MICHAEL STEPHEN WILLOUGHBY
MARK ROBERT WILLOUGHBY
APPLICANTS

AND:

CLAYTON UTZ
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

28 FEBRUARY 2003

PLACE:

PERTH

REASONS FOR JUDGMENT

The respondent is a firm of solicitors against which a claim has been brought in the partnership name: Federal Court Rules O 42, r 4(1). The respondent brings a notice of motion filed on 5 August 2002 seeking to have the applicants’ amended statement of claim (undated but served on 21 June 2000) struck out and to have their action dismissed. Alternatively the motion seeks that the action of the fourth named applicant be dismissed with costs. Although not expressed in terms in the motion, it was nevertheless argued in support of it that the Court should determine whether the proceeding should be transferred to the Supreme Court and only look to the relief claimed in the application in the alternative.
The context within which the respondent’s motion is brought is determined by a motion brought on behalf of the applicants dated 16 August 2002 whereby the applicants seek liberty to amend their application. The terms of the proposed amended application and the prior format are:
“AMENDED APPLICATION
The Applicants claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 120
Decision Date: 28 FEBRUARY 2003

CaseChat Overview and Summary

In the case of Willoughby v Clayton Utz, the Federal Court was tasked with determining whether it should transfer the matter to the Supreme Court of Western Australia. The applicants, Willoughby, sought to retain the case within the Federal Court, while the respondent, Clayton Utz, argued for the transfer to the Supreme Court. The dispute centred around jurisdictional issues and the potential implications of a constitutional point that was foreshadowed by the respondent.

The primary legal issue before the court was whether the Federal Court should exercise its jurisdiction over the matter or transfer it to the state court, given the potential overlap between the federal and state legal frameworks. The court was also required to consider whether the discretionary provisions for transfer should be applied, despite the presence of an arguable constitutional point.

In its reasoning, the court acknowledged the strong arguments presented by the applicants to retain the matter within the Federal Court. However, the court concluded that the jurisdictional approach, even if the constitutional issue did not arise or was found to be without substance, would likely result in the same outcome. The court found persuasive the principles established in Johnson Tiles, which held that the Federal Court should not decline its jurisdiction unless there was a compelling reason to do so. The court determined that there was no such reason in this case, and that the parties had already invested significant resources in the Federal Court proceedings.

The court ordered that the proceeding be transferred to the Supreme Court of Western Australia and that the applicants pay the respondent’s costs associated with the application for transfer.

Orders

Orders of the court

1. This proceeding be transferred to the Supreme Court of Western Australia.

2. The applicants pay the respondent’s costs of the application for transfer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although I do not decide the matter on that basis because I was not asked to do so in view of the foreshadowed constitutional point, it may be comforting to the applicants to know that my present preliminary view is that if the jurisdiction of the Court to determine its jurisdiction was found to be in this Court as a consequence of the foreshadowed constitutional point being rejected, the matter would be likely to be determined adversely to the applicants in any event. In short, I do not see the foreshadowing of the constitutional point as either solely making the respondent’s case for transfer or as likely to lead to a different result if argued and rejected by the High Court. Of course, if the foreshadowed constitutional point was upheld by the High Court, this Court would have been found not to have jurisdiction in the circumstances to embark on the matter of determining its jurisdiction so that the matter could not proceed further.Conclusion For these reasons I accept the submission for the respondent that this proceeding must be transferred to the Supreme Court of Western Australia.

Ratio Decidendi

Legal Principle Established

For these reasons I consider the proceeding should be transferred to the Supreme Court. It is not necessary therefore to rely on the discretionary provision for transfer.Preliminary consideration of the jurisdictional approach Given the strong views of the applicants that the proceeding should remain in this Court, I have given preliminary consideration to the jurisdictional approach on the basis that the constitutional issue either does not arise or was found to be without substance. The present tentative view I have reached is that the application of the law in that respect as currently understood would lead to the same result. In Johnson Tiles the Full Court considered issues arising on leave to appeal from orders striking out a trade practices claim, allowing it to be repleaded and allowing a claim for negligence to go on. There the trade practices claim was held not to be viable. The negligence claim was held not to be untenable. It was further held that there was sufficient overlap between the factual issues raised by the negligence claim and the untenable trade practices claim for misleading and deceptive conduct so that the former could be said to form part of the same matter. The negligence claim was therefore within the accrued jurisdiction of the Court. On consideration of the discretionary character of the accrued jurisdiction, it was held that the Court ought not to decline the jurisdiction and the negligence claim should continue in the Court. In reaching that view, French J, with whom Beaumont and Finkelstein JJ agreed, said (at 602):“The question whether the common law claim should continue in this Court or should be stayed on the basis that it be pursued in the Supreme Court of Victoria is to be decided by determining whether or not this Court should decline to exercise its jurisdiction properly invoked in this matter. There can be no doubt that the Supreme Court of the State of Victoria is as well equipped as this Court to deal with a claim in negligence and the associated cross-claims. The action for negligence is one which could well have been commenced in the State Supreme Court. Nevertheless, the applicants having commenced their proceedings in this Court and having properly invoked federal jurisdiction, there would need to be demonstrated some reason for this Court declining to fulfil what would ordinarily be its obligation to exercise its jurisdiction. While the claim is a non-federal claim it is based not upon a Statute peculiar to Victoria but upon the common law of Australia, albeit the question of liability may turn in part upon at least one Act of the Victorian Parliament, namely the Gas Industry Act and the Victorian Gas Customer Service Code which is incorporated into the terms of gas retail licences issued under the Act. Further, and from a practical point of view, all parties have expended considerable time and incurred substantial costs in the proceedings in this Court. The statement of claim has been through a process of refinement. The discovery process is about eighty percent complete and has cost millions of dollars according to counsel for the State Entities. The case is in the docket of a judge who is thoroughly familiar with it. There is no reason now to impose upon the parties the additional burdens associated with this Court declining further to exercise its jurisdiction notwithstanding that it has before it an arguable claim of considerable importance and complexity. In my opinion, the Court ought not to decline the jurisdiction which it has. The negligence claim should therefore continue in this Court. Earlier in his reasons (at 601) French J said the court must take an evaluative rather than a discretionary approach, looking to the functional considerations.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 183 OF 1998

BETWEEN:	BERYL FRANCES WILLOUGHBY JOHN FRANCIS WILLOUGHBY MICHAEL STEPHEN WILLOUGHBY MARK ROBERT WILLOUGHBY APPLICANTS
AND:	CLAYTON UTZ RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	28 FEBRUARY 2003
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	28 FEBRUARY 2003
PLACE:	PERTH