Xiang v Ward

[2016] NSWDC 64

District Court

New South Wales

Medium Neutral Citation:	Xiang v Ward [2016] NSWDC 64
Hearing dates:	27 April 2016
Date of orders:	27 April 2016
Decision date:	27 April 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	The proceedings would have been assigned to the Common Law Division under s 44(1)(a) of the District Court Act 1973 and are thus within the jurisdiction of this Court
Catchwords:	JURISDICTION – misleading and deceptive conduct claim – assignment of proceedings
Legislation Cited:	District Court Act 1973, s 44 Supreme Court Act 1970, s 54 Supreme Court Rules 1970, Pt 12 r 7, Pt 14 r 2
Cases Cited:	Abbott v Klein [2015] NSWDC 45 Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 Eberstaller v Poulos [2014] NSWCA 211 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8 Fountain v Alexander (1982) 40 ALR 441 New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27
Category:	Procedural and other rulings
Parties:	Youfa Xiang (plaintiff) Peter Luscombe Ward (defendant)
Representation:	Counsel: Mr M W Young SC (plaintiff) Mr M W E Maconachie (defendant)     Solicitors: Dixon Holmes Lawyers (plaintiff) Cappello Rowe Lawyers (defendant)
File Number(s):	2013/304886
Publication restriction:	None

Judgment

1. Yet another case has arisen in this Court raising a question about the jurisdiction conferred on this Court by s 44 of the District Court Act 1973 (see, for example, Abbott v Klein [2015] NSWDC 45, New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27). Inevitably, time, costs and judicial resources are thus expended upon this "arid" question (Fountain v Alexander (1982) 40 ALR 441 at 456) before the factual and legal merits of the matter can be heard and determined. Both parties submit that the Court has jurisdiction in the matter although that does not relieve the Court of its first duty, which is to determine jurisdiction (Eberstaller v Poulos [2014] NSWCA 211 at [1])

2. Youfa Xiang sues Peter Ward for misleading and deceptive conduct.  Whether such a proceeding can be maintained in this Court depends on whether it is an action "of a kind…which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court" (s 44(1)(a) of the District Court Act 1973).  As has been noted in Abbott and Quinn, the answer to this question depends upon the division to which the action would have been assigned if commenced in February 1998, in accordance with Forsyth v Deputy Commissioner of Taxation [2007] HCA 8.

3. In February 1998 there existed a number of divisions in the Supreme Court of which the Common Law Division and the Commercial Division have current relevance.  The statutory assignment of proceedings between these divisions was considered in Abbott at [58] ‑ [72]. That case also involved a claim of misleading conduct.

4. Part 12 r 7 of the Supreme Court Rules 1970 current in February 1998 provided that misleading conduct claims under the former Pt V of the Trade Practices Act 1974 (Cth), "shall be assigned to the Common Law Division, the Equity Division or the Commercial Division as is appropriate to the nature of the proceedings". Whatever uncertainties may lurk within a jurisdictional fact founded upon "appropriateness", there is no suggestion that these proceedings have features warranting assignment to the Equity Division. As to the Commercial Division, Mr Xiang, by his senior counsel, submitted that the features of the Commercial Division included such matters as expeditious commencement of proceedings, a need for urgent resolution, a need for commercial expertise in the tribunal, expeditious justice to minimise interference with the economic imperative of trade and commerce, commercial matters of significance and the absence of delay in the litigation. Some of these features were referred to in the decision of Rogers CJ Comm D in Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 300-307. It was submitted that this matter would be unlikely to remain in the Commercial Division because it does not exhibit these features.

5. I am not persuaded that the law which governs where an action might be heard, maintained, managed or transferred is determinative of where it is statutorily assigned, see, for example, Abbott at [66]. Section 54 of the Supreme Court Act 1970, as it existed in February 1998, appears to distinguish between the transfer or retainment of proceedings and their division of assignment. 

6. Nevertheless, the features listed above which are indicative of whether the Commercial Division was appropriate to hear a matter are relevant to the application of Pt 12 r 7 because what is "appropriate" is the touchstone of assignment under that provision. 

7. Further, the specific reference to misleading conduct proceedings under Pt V of the Trade Practices Act 1974 (Cth) in Pt 12 r 7 is directly applicable to the current misleading conduct proceedings, and more closely applicable than the more general provision in Pt 14 r 2 – assigning matters to the Commercial Division - which extends to proceedings having a commercial connection. This suggests an application of the maxim generalia specialibus non derogant, that Pt 12 r 7 should prevail in this instance over Pt 14 r 2.

8. I also adopt the reasoning in Abbott at [67] - [68] that in these circumstances statutory assignment is not necessarily exclusive to one division.

9. For these reasons, I conclude that the proceedings would have been assigned to the Common Law Division under s 44(1)(a) of the District Court Act 1973 and are thus within the jurisdiction of this Court.

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Decision last updated: 09 May 2016