Yorke, Miles Richard v Ross Lucas Pty Ltd

[1981] FCA 218

I N THE FEDERAL COURT O F AUSTRALIA )

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SOUTH AUSTRALIA	DISTRICT	REGISTRY	1	S.A.	No.	G38	of	1981
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GENERAL D I V I S I O N 1

B E T W E E N :

MILES RICHARD YORKE and

SUE ELIZABETH YORKE

A p p l i c a n t s

- and -

ROSS LUCAS PTY. LTD., ROSS MELVILLE LUCA

TREASUREWAY STORES	PTY.	LTD. and KEVIN
THOMAS MAHONEY

Respondent S

AND

ROSS LUCAS PTY. LTD., and

ROSS MELVILLE LUCAS

Cross-Claimants

- and -

TREASUREWAY STORES PTY. LTD.

C r o s s - R e s p o n d e n t

O R D E R

JUDGE MAKING ORDER Fisher J.

DATE OF ORDER 24 N o v e m b e r 1981

WHERE MADE . A d e l a i d e

THE COURT ORDERS THAT :

1. T r e a s u r e w a y Stores Pty. L t d ' s application for a stay

of proceedings be d i s m i s s e d .

2. Treasureway Stores Pty. Ltd . t o pay the applicants costs

of the N o t i c e of Motion t o be taxed i f not agreed.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY	S.A. No.G38 of 1981
GENERAL DIVISION

B E T W E E N :

MILES RICHARD YORKE and

SUE ELIZABETH YORKE

Applicants

- and -

ROSS LUCAS PTY. LTD., ROSS MELVILLE LUCAS,

-

TREASUREWAY STORES PTY. LTD. and KEVIN

THOMAS MAHONEY

Respondents

AND

-

ROSS LUCAS PTY. LTD., and

ROSS MELVILLE LUCAS

Cross-Claimants

- and -

TREASUREWAY STORES PTY. LTD.

Cross-Respondent

REASONS FOR JUDGMENT

FISHER J.: This is an application by way of motlon by Treasureway

Stores Pty. Ltd. one of the respondents to the main proceedings,

which company I shall refer to as Treasureway, for a stay of these

proceedings pending the hearing and determination of two actions

in the Supreme Court of South Australia. As the hearing of the

action in this court is due to commence next week, it is desirable

I give my decision on the application promptly, and, as far as

possible in the circumstances, give my reasons so that the unsuccessf party is not, for all practical purposes, denied his right to appeal my decision.

2.

Treasureway i s one of four respondents i n t h e proceedings i n t h i

court wherein Miles Richard Yorke and Sue Elizabeth Yorke, whom I shal l cal l the appl icants , seek damages pursuant to sec t ion 82 of

the Trade Practices A c t for alleged contraventions of sections 52

and 59 of tha t ac t . They seek no other re l ief i n th i s cour t , nor do

they set up any common l a w causes of action, though currently-on

foot are two a c t i o n s i n t h e Supreme Court of t h i s S t a t e , i n one of

which the applicant, Miles Richard Yorke, alone claims against

Treasureway and one of the other three persons who are respondents

i n the proceedings in this court , and i n t h e o t h e r of which Treasurew

alone claims against the two applicants.

It is apparent, therefore, that the various actions are not

between the same pa r t i e s , a matter of some s ignif icance in that

Treasureway i s seeking to s tay proceedings in which it i s only one of

four respondents, and seeking t o s t a y them substant ia l ly in re l iance

upon proceedings which it alone has taken i n t h e Supreme Court.

I w i l l not delay t o r e c i t e i n any d e t a i l t h e background f ac t s

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i n the matter. They are set ou t i n the a f f idav i t of Franco Camatta

sworn i n support of the application for	a stay, which was not
challenged by counsel for the applicants.

Essentially, the proceedings in this court claim, as I have

mentioned, contraventionsof two sections of the Trade Practices Act

ar is ing out of the purchase by the applicants of a business from

Treasureway. The other three respondents comprise a director of

Treasureway and the agent of t ha t company, which was i tself another

company, and a director of t h a t l a t t e r company.

3.

The essence of the applicant's contention is, in effect,

misrepresentations as to the profitability of the business, and

these facts are also the foundation for the proceedings in the

Supreme Court against Treasureway and its director. In these

proceedings,the claim is for damages for fraudulent representation

or, alternatively, innocent misrepresentation under the South

Australian Misrepresentation Act 1972, and neglect misrepresentation

as well as breach of the Land and Business Aqents Act.

Additionally, Treasureway has instituted proceedings against

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the applicants in the Supreme Court claiming in respect of alleged

breaches of a bill of sale given by them in favour of Treasureway.

The current position i each of these three proceedings is as

follows: the Supreme Court proceedings by the male applicant were

commenced after certain prelimnary applications in that court on

30 July 1981, and it was contended that they could be heard, at the

earliest, towards the middle of next year. In the other Supreme

CouFt proceedings commenced on 23 October 1981 by Treasureway a

statement of claim has not yet been filed, although	a number of
interlocutory orders have been made.

The proceedings in this court were commenced on 21 August 1981

and are set down for hearing on Tuesday 1 December 1981. The early

date for hearing of the latter proceeding is the result of the

acceptance by a judge of this court of the necessity, in the interest

of the applicants, of a prompt hearlng and the fixing of a very

tight timetable for delivery of pleadings and matters	of discovery,
et cetera.

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4.

Counsel fo r Treasureway based h i s ca se on three aspects of

the various proceedings. These were, f i r s t l y , he sa id tha t t he

same facts pleaded by the applicants w e r e the foundation for the

ac t ions i n t h i s and the Supreme Court, which latter proceedings

were f i r s t commenced; secondly, cross-claims between the four

respondents i n t h i s cou r t i n r e spec t of which there w e r e doubt-s a s t o

this court ' s jur isdict ion; f inal ly , the bill of sa l e proceedings

which, it was said, would over lap , a t l eas t in par t , wi th the

proceedings in t h i s cou r t .

H e re l ied par t icu lar ly on the fact that the appl icants had i n

f ac t , i n t he f i r s t i n s t ance , s e l ec t ed the Supreme Court as the

appropriate forum i n which t o c la im re l ie f , which relief, he sald.

was equally available t o them i n e i ther court . H e pressed on me

the dicta of Mr. Jus t ice Dixon In the case of Union Steamship Company

of New Zealand v The Caradale 56 C.L.R. 277 a t page 281, and the

decision of Sir Nigel Bowen, Chief Judge of t h i s cour t , i n Huqhes

Motor Service Pty. Limited and Others v Wanq Computer Limited (1978-7

2 A,T.P.R. 17,961.

Neither of these decisions persuade m e t h a t I am obliged t o r u l c

i n favour of Treasureway and, i n f a c t , each contains dicta which

supports a decision to dismiss the appllcation. The d ic ta of Chief

Judge Bowen a t p-17,964 i n the l a t te r mat te r i s that:

"Broadly speaking, i f t he cour t followed the English

au thor i t ies , it would balance any advantage t o t h e

p l a in t i f f i n t h i s cou r t aga ins t any disadvantage t o the

defendant i n exercising i ts discretion. I am of the

opinion that the court should a t l e a s t do that."

5.

This i s i n accord with the approach of Mr. Jus t ice Toohey

i n Hans Martin Muller and Another v Brian E r i c Fencott and Others,

an unreported decision of th i s cour t handed down on 10 September 1981

Mr. Just ice Toohey was of the opinion that , to just i fy a stay of

proceedings, the applicants for the stay "must a t l e a s t show tha t tht

Supreme Cotirt is a forum t o whose jurisdiction they are amenable,

i n which jus t ice can'be done a t subs tan t ia l ly less inconvenience and

expense and tha t a s tay w i l l not deprlve the applicants of legitimatc

personal or juridical advantages available	t o them	i n t h e Federal
Court" 1'

It i s of interest that these two judges, i n r e l i ance upon the

f ac t s of their respective matters, exercised his d iscre t ion in a

different manner.

It could not be disputed that Treasureway w a s amenable t o t h e

jur isdict ion of the Supreme Court. However, accepting the contentior

of counsel for the appl icants tha t the burden of proof lies on

Tre.?sureway ( for which proposition he cited the Atlantic Star case

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g974 A.E. 346 and, in par t icu lar , the reasons of Lord Wilberforce a t

pages 467 to 469) , Treasureway has not, by i ts evidence, satisfied

m e tha t it w i l l incur substantiaily less inconvenience and expense

i f t he i s sues are l i t i g a t e d i n t h e Supreme Court.

Moreover, in the par t icular c l rcumstances of these proceehngs,

it does seem t o m e that the appl icants w i l l be deprived of legitimatt

personal and jur id ica l advantages. They have, i n consequence of

their-representations, obtained an e a r l y t r i a l i n t h i s c o u r t which i s

due t o commence next week, a s a result of which a l l p a r t i e s have been

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placed under considerable pressure to be ready for trial.

All parties against whom the applicants contend they have a

right to recover their loss are respondents in these proceedings

and Treasureway has not satisfied me that remedies which may be

avallable in this court in respect of contraventions of the Trade

Practices Act are equally available in the Supreme Court proceedings.

Counsel for the applicants has argued strongly to the contrary

and I am not satisfied that there is no advantage to the applicants i

baslng their claim on section 52 of the Trade Practices Act. My view

is that, on a number of grounds, the applicants are likely to be

disadvantaged if they are not permitted to proceed with the hearlng o

this action in this court next week.

Treasureway relied also on the cross-actions in this court and

also its claim in the bill of sale action. However, I do not

consider the fact that Treasureway is seeking in thls court to claim

indemnity or contributlon in respect of he consequences of a

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decision favourable to the applicants and also the jurisdictional

doubts are matters to be counted against the applicants. They should

not be permitted to prevent the applicants obtaining	a speedy
determination of their rights.

Moreover, the nexus and possible-overlapping with the,bill of

sale action and its issues were, in my view, too uncertain and

nebulous to be glven any significant weight. I would distinguish

the decision of Sir Nigel Bowen, Chief Judge, as did Mr. Justice

Toohey, on the facts before him. The Supreme Court proceedings had,

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in the matter before the C h i e f Judge, been commenced some 15

months a t least p r io r t o the proceedings i n the Federal Court and

w e r e w e l l advanced towards a hearing. The proceedings i n the Federal

Court had, a t the da te of the application for a stay, only recently

been commenced and a defence had not been f i led .

Moreover, i n c o n t r a s t t o t h e matter before m e , some o f the

pa r t i e s i n t he Supreme Court action were not named i n the proceeding!

in the Federal Court. It is s i g n i f l c a n t t h a t , a t l e a s t i n p a r t , i n

reliance upon h i s v l e w t h a t , because jur i sd ic t ion in respec t of

the claim under the Traae Practices Act could only be exercised

in the Federal Court and t h a t the applicants should not be denied the

opportunity of	coming to t h i s cou r t , he	was	not prepared	to g ran t	an
absolute stay.

The Chief Judge made the point in support of h i s view t h a t a .

limited stay should be granted, that justlce and good sense require

tha t there should be an end to l i t igat ion. In the matters before me

and, by way of contrast , it seems t h a t no matter who succeeds i n t h i r

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court , the probabi l i t ies are tha t the appl icantss ac t ion in the

Supreme Court w i l l not proceed, a t l ea s t t o t he ex t en t t o which it

i s based on the a l legat ions of misrepresentations.

If they obtain an award of damages on tha t score in th i s cour t ,

h i s c la im in the Supreme Court w l 1 1 necessar i ly fa i l and, i f h e

does not succeed on tha t score in this court, he probably has l i t t l e ,

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i f any, prospect of success in-the Supreme Court.

Counsel for the applicants relied heavily on the decision of

Mr. Just ice Lush in Telford Panel and Enqineerinq Works Pty. Limited

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v Elder Smith Goldsbrouah Mort Limlted, a decision of the Supreme

Court of Victoria reported in F963 V.R. 193, and in particular the

statements of general principle at pages 197.to 198. I agree that

they strongly support his contention that a stay should not be grante

The decision as to whether or not izo grant a stay lies in the

exercise of my discretion. In all the circumstances, I am not

satisfied that this is a proper case for a stay and I therefore dismi

Treasureway's application.

Treasureway must pay the applicants c o s t s of the notice of

motion to be taxed if not agreed.