Anthony Charles Badham Jackson v John Fairfax & Sons Limited and National Westminster Finance Australia Limited [1988] ACTSC 74 (23 December 1988)

SUPREME COURT OF THE ACT

ANTHONY CHARLES BADHAM JACKSON v. JOHN FAIRFAX & SONS LIMITED
and NATIONAL WESTMINSTER FINANCE AUSTRALIA LIMITED
S.C. No. 991 of 1988
Courts - Private International Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Courts - practice & procedure - jurisdiction - Jurisdiction of Courts (Cross-vesting) Act 1987 - nature of cross-vesting scheme - application for transfer to Supreme Court of New South Wales - criteria to be applied - non application of private international law principles - whether only part of proceedings may be transferred.

Private International Law - application of principle of forum non conveniens - whether appropriate to Jurisdiction of Courts (Cross-vesting) Act 1987.

Bankinvest A.G. v. Seabrook & Ors. (unreported, N.S.W. Court of Appeal, 29 September 1988)

Spiliada Maritime Corporation v. Cansulex Ltd. (1987) 1 AC 460

Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 79 ALR 9

HEARING

CANBERRA
23:12:1988

Counsel for the plaintiff Mr R.A. Campbell

Solicitors for the plaintiff Macphillamy Cummins & Gibson

Counsel for the 1st defendant Mr R. Arthur

Solicitors for 1st defendant Mallesons Stephen Jaques

Counsel for the 2nd defendant Ms R.S. McColl

Solicitors for 2nd defendant Minter Ellison

ORDER

1. The second defendant within 7 days amend the notice of motion of 7 November 1988, the affidavit of Frederick Paul Lind sworn 2 November 1988 and the affidavit of Deborah Anne Latimer sworn 27 October 1988 by placing above the title the statement "Jurisdiction of Courts (Cross-vesting) Act 1987".

2. The plaintiff's claim for damages under s.52 of the Trade Practices Act 1974 and paragraphs 10 to 19 inclusive of the statement of claim filed 19 September 1988 be transferred to the Supreme Court of New South Wales pursuant to s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987.

3. Upon such transfer the plaintiff's claim for damages under the Trade Practices Act 1974 and the said paragraphs be struck out of the statement of claim and the plaintiff amend the statement of claim accordingly.

4. Costs of notice of motion costs in the cause.

DECISION

This is an application under s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) for an order transferring the proceedings to the Supreme Court of New South Wales. It comes before the Court by way of notice of motion dated 7 November 1988. The application is made by the second defendant. It is convenient to refer to the applicant as Natwest. The application is resisted by the respondent plaintiff (Mr. Jackson). The first defendant is not a party to the application.

2. The Jurisdiction of Courts (Cross-vesting) Act 1987 provides in part as follows:
"5(2) Where -

(a) a proceeding (in this sub-section referred
to as the "relevant proceeding") is pending
in the Supreme Court of a State or
Territory (in this sub-section referred to
as the "first court"); and
(b) it appears to the first court that -
(i) the relevant proceeding arises out of,
or is related to, another proceeding
pending in the Supreme Court of another
State or Territory and it is more
appropriate that the relevant proceeding
be determined by that other Supreme
Court;
(ii) having regard to -
(A) whether, in the opinion of the
first court, apart from this Act
and any law of a State relating to
cross-vesting of jurisdiction, the
relevant proceeding or a substantial
part of the relevant proceeding
would have been incapable of
being instituted in the first
court and capable of being
instituted in the Supreme Court of
another State or Territory;
(B) the extent to which, in the
opinion of the first court, the
matters for determination in the
relevant proceeding are matters
arising under or involving
questions as to the application,
interpretation or validity of a
law of the State or Territory
referred to in sub-sub-paragraph
(A) and not within the jurisdiction
of the first court apart
from this Act and any law of a
State relating to cross-vesting of
jurisdiction; and
(C) the interests of justice,
it is more appropriate that the relevant
proceeding be determined by that
other Supreme Court; or
(iii) it is otherwise in the interests of
justice that the relevant proceeding be
determined by the Supreme Court of
another State or Territory,
the first court shall transfer the relevant proceeding
to that other Supreme Court."

3. On 27 July 1988 Mr. Jackson issued a writ of summons out of this Court against John Fairfax & Sons Limited (John Fairfax) as first defendant and Natwest as second defendant. The writ shows an address for Natwest which is within the territorial jurisdiction of the Supreme Court of the Australian Capital Territory and Natwest has entered an unconditional appearance. In the statement of claim filed on 19 September 1988 Mr. Jackson alleged that Natwest in February 1988 and prior to 21 February 1988 defamed him by an oral statement made by a Natwest employee to an employee of John Fairfax in New South Wales. Mr. Jackson further alleged that John Fairfax defamed him in the Sun Herald of 21 February 1988. The publication in the Sun Herald was in terms substantially similar to those alleged to have been made by the employee of Natwest, namely:

"The NSW Law Society is taking a close interest
in the affairs of Pitt Street solicitor,
Mr. Anthony Jackson. Judge Yeldham in the
Supreme Court has ordered him to pay $151,978.53
to National Westminster Finance Australia
Ltd. A NatWest spokesman said charges had been
initally laid by the company's Melbourne branch,
adding that Jackson now appeared to be overseas."

4. The statement of claim alleged publication of the issue of the Sun Herald of 20 February 1988 in each of the States, in the Northern Territory and in the Australian Capital Territory. Various imputations and claims for general, special, aggravated and exemplary damages were pleaded.

5. In paragraphs 10 to 18 of the statement of claim Mr. Jackson made certain further allegations against Natwest which arose out of an agreement for loan dated 9 February 1983 between Mr. Jackson and Natwest and a mortgage over land at Tumut given by Mr. Jackson to Natwest in order to secure the loan made in furtherance of the agreement. Mr. Jackson alleged that after he had made default in payments due under the mortgage, Natwest entered into possession of the land, and purported to exercise a power of sale. Mr. Jackson alleged that Natwest sold the land at an under value. The sale price was insufficient to meet the claim by Natwest, as a result of which Natwest took proceedings in the Supreme Court of New South Wales and, allegedly without notice to Mr. Jackson, obtained judgment in the Supreme Court of New South Wales. Mr. Jackson P+N further alleged in the proceedings in this Court that that judgment was obtained by false representations which constitute misleading and deceptive conduct within s.52 of the Trade Practices Act 1974. Accordingly, he seeks in this Court, in addition to damages for defamation against both defendants, damages under s.52 of the Trade Practices Act 1974 against Natwest only.

6. In paragraph 19, the final paragraph of his statement of claim, Mr. Jackson alleged:

"The matters alleged in paragraphs 11 to 17 above
in respect of which relief is claimed in this
Statement of Claim, are within the jurisdiction
of this Court by reason of provisions of the
Jurisdiction of Courts (Cross-Vesting) Act, 1987
and the Jurisdiction of Courts (Miscellaneous
Amendments) Act, 1987 of the Commonwealth of
Australia."

(Presumably the reference to paragraphs 11 to 17 is intended to be a reference to paragraphs 10 to 17.)

7. Sub-section 4(1) of the Cross-vesting Act provides as follows:

Additional jurisdiction of certain Courts
4.(1) Where -
(a) the Federal Court or the Family Court has
jurisdiction with respect to a civil
matter, whether that jurisdiction was or is
conferred before or after the commencement
of this Act; and
(b) the Supreme Court of a State or Territory
would not, apart from this section, have
jurisdiction with respect to that matter,
then -
(c) in the case of the Supreme Court of a State
(other than the Supreme Court of the
Northern Territory) - that court is
invested with federal jurisdiction with
respect to that matter; or
(d) in the case of the Supreme Court of a
Territory (including the Northern
Territory) - jurisdiction is conferred on
that court with respect to that matter."

8. By s.3 of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 the Trades Practices Act 1974 is amended by, inter alia, the repeal of s.86 and the substitution of the following:

"Jurisdiction of courts
86(1) Jurisdiction is conferred on the Federal
Court in any matter arising under this Act in
respect of which a civil proceeding has, whether
before or after the commencement of this section,
been instituted under this Part.
(2) The several courts of the States are
invested with federal jurisdiction within the
limits of their several jurisdictions, whether
those limits are as to locality, subject-matter
or otherwise, and, subject to the Constitution,
jurisdiction is conferred on the several courts
of the Territories, with respect to any matter
arising under Division 1 or 1A of Part V in
respect of which a civil proceeding is instituted
by a person other than the Minister or the
Commission.
(3) Nothing in sub-section (2) shall be taken
to enable an inferior court of a State or
Territory to grant a remedy other than a remedy
of a kind that the court is able to grant under
the law of that State or Territory.
(4) The jurisdiction conferred by sub-section
(1) on the Federal Court is exclusive of the
jurisdiction of any other court other than the
jurisdiction of the several courts of the States
and Territories under sub-section (2) and the
jurisdiction of the High Court under section 75
of the Constitution."

9. The jurisdiction of the Supreme Court of the Australian Capital Territory to entertain the claim for damages under s.52 of the Trade Practices Act 1974 is conferred only by sub-s.4(1) of the Cross-vesting Act or sub-s.86(2) of the Trade Practices Act 1974, or both, and not otherwise. In contrast, the jurisdiction to entertain the claim for damages for defamation against Natwest derives from the presence of Natwest within the territorial limits of the Australian Capital Territory, in which the process of the Supreme Court is amenable.

10. The application made by Natwest in this Court is for an order transferring the proceedings in this Court into the Supreme Court of New South Wales but only insofar as they relate to the claim by Mr. Jackson against Natwest for damages under s.52 of the Trade Practices Act 1974. There is no application to transfer the claim for damages for defamation against either defendant.

11. The factual basis upon which the application for transfer of proceedings is made is set out in the affidavit of Deborah Anne Latimer of 27 October 1988 and is not disputed. It may be summarised as follows.

12. On 21 September 1987 Natwest commenced proceedings in the Supreme Court of New South Wales by way of summons seeking judgment for a sum of money by reason of Mr. Jackson's default under the loan agreement already referred to. These proceedings may be referred to as the NSW proceedings.

13. The summons came on for hearing before Yeldham J. on 5 February 1988. His Honour gave Natwest leave to amend the amount claimed in the summons and granted further leave to Natwest to enter judgment for $151,978.53. Mr. Jackson was ordered to pay Natwest's costs. Judgment was formally entered on 24 February 1988. There was no appearance by or on behalf of Mr. Jackson at the hearing before Yeldham J.

14. On 17 May 1988 Mr. Jackson took out a notice of motion in the NSW proceedings to set aside the judgment. The motion came on for hearing before Giles J. It was submitted on behalf of Mr. Jackson that he had not been served with the summons on which the judgment was founded. Giles J. found that any irregularity as to service was insufficient to entitle Mr. Jackson to have the judgment set aside. Nevertheless, on 8 July 1988 his Honour set aside the judgment upon condition that Mr. Jackson pay into Court within 28 days the sum of $12,000 to abide the order of the Court and on condition that Mr. Jackson pay the costs of Natwest. In accordance with further orders made by Giles J., Mr. Jackson filed a document entitled "Points of Defence and Cross-claim" on 12 August 1988 and a document entitled "Cross-claim" on the same day. The defence raised was failure to comply with s.57 of the Real Property Act 1900 (N.S.W.). The cross-claim sought declarations, damages and interest for the alleged sale at an undervalue.

15. On 29 September 1988 a consent order was made in the NSW proceedings that the matter be placed in the general list of the Common Law Division of the New South Wales Supreme Court to obtain a hearing date.

16. The Cross-vesting Act and complementary legislation in the States and Northern Territory (and, to a lesser degree, the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987) have brought significant changes to the relationship among themselves of the eight State and Territory Supreme Courts, the Federal Court of Australia and the Family Court of Australia. On the fundamental matter of jurisdiction the cross-vesting legislation enables any one of these courts to exercise the jurisdiction of any one of the other nine courts. Procedurally, any one of the courts in which "a proceeding" has been commenced may transfer that proceeding to any one of the other nine courts. The terms of s.5 of the Cross-vesting Act, as well as the Preamble, make it clear that the legislation is not intended to be used as a method of forum shopping, and that, despite what Rogers A.J.A. has called "plenitude of jurisdiction", litigation should proceed in the court which, having regard to the broad interests of justice, is the most appropriate.

17. The cross-vesting scheme was considered by the New South Wales Court of Appeal in Bankinvest A.G. v. Seabrook & Ors. (unreported, N.S.W. Court of Appeal, 29 September 1988).

18. In that case Rogers A.J.A., who delivered the leading judgment, rejected the idea that it is only where the court in which the proceedings are presently located cannot give the parties all the relief that is sought that an order for transfer will be made and the other members of the Court of Appeal appeared to share that view. However, there was no generally shared view that the question whether or not one court should exercise its power under the cross-vesting scheme to transfer proceedings to another court was to be decided by the principles of private international law relating to forum non conveniens (and in particular those enunciated by Lord Goff in Spiliada Maritime Corporation v. Cansulex Ltd. (1987) 1 AC 460, that being a case which a majority in the High Court of Australia declined to follow in Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 79 ALR 9).

19. For the purposes of the present case I do not think it necessary to express an opinion about the relevance of the Spiliada principles to the Cross-vesting Act. The Cross-vesting Act provides its own criteria for deciding whether a proceeding should or should not be transferred. They are to be found in s.5. Where the application is to transfer a proceeding from one State or Territory Supreme Court to another, sub-s.5(2) applies, and the criteria are set out in sub-clauses (b)(i), (ii) and (iii). Each of those three sets of criteria is in the alternative. The present case, in my view, meets all three sets of criteria.

20. As to sub-clause (b)(i), the claim for damages against Natwest for deceptive conduct under s.52 of the Trade Practices Act 1974, in my opinion, both arises out of and is related to the litigation in the Supreme Court of New South Wales in which Natwest is suing Mr. Jackson for money alleged to be due under a loan agreement secured by mortgage over land in New South Wales. Mr. Jackson raises a defence based on s.57 of the New South Wales Real Property Act 1900 and, further, makes a counterclaim for damages or seeks a set-off by way of an order for account. A judge of the Supreme Court of New South Wales has already decided in an interlocutory application that the counterclaim is fairly arguable in law. The conduct which Mr. Jackson alleges in the proceedings in this Court was misleading or deceptive conduct under s.52 of the Trade Practices Act 1974 occurred during the course of the interlocutory application in the NSW proceedings. The connection between Mr. Jackson's claim in this Court against Natwest for damages under the Trade Practices Act 1974 and the matters he raises by way of defence counterclaim and set-off in the NSW proceedings is clear, direct and substantial. That it would be more appropriate for the claim under the Trade Practices Act 1974 to be litigated in the Supreme Court of New South Wales follows from what has already been said. Furthermore, without wishing to pre-empt any decision that might be made in that Court, I consider that it is likely that any claim which Mr. Jackson may have against Natwest for damages under the Trade Practices Act 1974 may be added to his counterclaim in the NSW proceedings. The connection between Mr. Jackson's claim for damages under the Trade Practices Act 1974 and the NSW proceedings is closer than it is to his claim for damages for defamation brought against John Fairfax and Natwest in this Court.

21. As to sub-clause (b)(ii), the jurisdiction of this Court to hear the claim under s.52 of the Trade Practices Act 1974 is conferred upon it by s.86(2) of that Act (as well as by the Cross-vesting Act); equally by the same sub-section the Supreme Court of New South Wales has jurisdiction to entertain that claim. A determination of whether the conduct relied upon is misleading or deceptive is likely to involve questions of the application and interpretation of the law of New South Wales where the land is situated (and presumably where the sale took place). It is likely that witnesses from New South Wales will be called to give evidence, and although I am not told who they will be or where they reside, a New South Wales venue will be at least as convenient as Canberra. Apart from the other considerations to which regard is to be had under sub-clause (b)(ii) I am satisfied that it is in the interests of justice and more appropriate that the claim for damages under the Trade Practices Act 1974 be determined by the Supreme Court of New South Wales.

22. For the purposes of the present case I think that what I have already said is sufficient to decide favourably to the applicant under the third alternative provided in sub-clause (b)(iii) that it is "otherwise in the interests of justice" for the claim for damages under the Trade Practices Act 1974 to be determined by the Supreme Court of New South Wales.

23. Counsel for Mr. Jackson claimed that an evaluation of the conduct of the defendant which is said to constitute the deceptive and misleading conduct is a matter which will have to be taken into account in the defamation action in this Court in calculating exemplary or aggravated damages or both. It is not necessary to give a considered opinion on this question. It is, in my view, sufficient to repeat that the subject matter of the New South Wales proceedings and the subject matter of the claim for damages under the Trade Practices Act 1974 are so closely associated that it would be in the interests of justice for those matters to be dealt with in the same tribunal. Whatever association there may be between the defamation proceedings and the claim under the Trade Practices Act 1974, it is not sufficient to outweigh the matters of convenience which would be effected by an order having the effect of transferring the claim under the Trade Practices Act 1974 into the Supreme Court of New South Wales.

24. In coming to the above conclusions I have proceeded on the basis that an applicant for an order transferring proceedings under the Cross-vesting Act must persuade the court to which the application is made that the transfer should take place. Whether or not an onus in the strict sense is cast upon such an applicant is not necessary to decide. As in the Bankinvest case, the onus, if it exists, is easily discharged in the present case.

25. Ms. McColl, on behalf of Natwest, argued that as an alternative to transferring the claim under the Trade Practices Act 1974 under the Cross-vesting Act, it would be appropriate to make an order in this Court that the claim under the Trade Practices Act 1974 be stayed. It was submitted that a stay of proceedings was appropriate because the application to set aside the judgment in the NSW proceedings raised the question whether the conduct relied upon was deceptive or fraudulent, that that application was heard and determined by Giles J. and that to permit the claim for damages under the Trade Practices Act 1974 to proceed would amount to an abuse of process. There may or may not be merit in the argument, but if there is, that is again a matter which, in my view, is more appropriately dealt with in the Supreme Court of New South Wales where no doubt the power to stay proceedings may be exercised if it is considered appropriate.

26. The precise order sought in the notice of motion is "that paragraphs 10 to 16 and 18 (insofar as it relates to paragraphs 10 to 16) of the Statement of Claim be transferred to the Supreme Court of New South Wales". The notice of motion appears to contain numerical errors which were not the subject of any comment at the hearing before me. Paragraphs 10 to 19 inclusive of the Statement of Claim all deal with the claim for damages against Natwest for damages under s.82 of the Trade Practices Act 1974 and it is those paragraphs, together with the claim itself, that I think are appropriate to transfer. No point was taken by Natwest that the Cross-vesting Act does not authorise the transfer of only part of the totality of the proceedings in a court. It would be against the spirit of the scheme and of the Cross-vesting Act if it were to be construed in that narrow way. The term "proceeding" is defined in s.3 only to the extent that it does not include a criminal proceeding. It may be of significance that the singular term "proceeding" is used and not the plural "proceedings": the Act contemplates that out of the totality of proceedings in one court, there may be a transfer of a singular proceeding (or several singular proceedings) to another court.

27. There is one final matter to which attention needs to be given. As Street C.J. has emphasised, the cross-vesting scheme will operate and be implemented throughout Australia - in the eight Supreme Courts of the States and Territories as well as in the Federal Court and Family Court - and the success of the scheme will depend on consistency of approach on the part of the judges of the several Courts which are partners in the scheme. To this end, each of the Courts has adopted uniform Rules of Court which prescribe the procedures to be followed in relation to matters arising under the cross-vesting scheme. It is essential that practitioners comply with the Rules, which for this Court are set out in Part 9 Order 78. Hence, before making any other order in the present application, I propose to order that the second defendant comply with Order 78 Rule 3.02, which provides that a document in proceedings for relief under the Act should have above the title the statement "Jurisdiction of Courts (Cross-vesting) Act 1987". The importance of this Rule is that it puts the Registry on notice that a party is seeking to make use of the cross-vesting scheme and enables the Court to assemble statistics and other material which, when added to similar material gathered from other participating courts, will provide a basis for an informed assessment of the success or otherwise of the scheme.

28. Formal orders are as follows:

1. The second defendant within 7 days amend the notice of
motion of 7 November 1988, the affidavit of Frederick
Paul Lind sworn 2 November 1988 and the affidavit of
Deborah Anne Latimer sworn 27 October 1988 by placing
above the title the statement "Jurisdiction of Courts
(Cross-vesting) Act 1987".
2. The plaintiff's claim for damages under s.52 of the
Trade Practices Act 1974 and paragraphs 10 to 19
inclusive of the statement of claim filed 19 September
1988 be transferred to the Supreme Court of New South
Wales pursuant to s.5(2) of the Jurisdiction of Courts
(Cross-vesting) Act 1987.
3. Upon such transfer the plaintiff's claim for damages
under the Trade Practices Act 1974 and the said
paragraphs be struck out of the statement of claim and
the plaintiff amend the statement of claim
accordingly.
4. Costs of notice of motion costs in the cause.

29. I note the undertaking of the second defendant to file the abovementioned affidavits in the Registry in the usual way. Unless one or more of the parties persuade me to the contrary, I think that the case should be relisted for directions in early 1989.