Re William Thomas Jones and Barbara Anne Jones v Petersville Limited [1986] FCA 89 (26 March 1986)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM THOMAS JONES and BARBARA ANNE JONES
And: PETERSVILLE LIMITED
No. QLD G13 of 1986
Federal Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Federal Court - jurisdiction - small case - allegation of breach of implied warranties - allegation of s.52 breach added - relevance of costs - claim struck out.

Trade Practices Act, 1974, s.52, Part V. Div. 2

HEARING

BRISBANE
26:3:1986

Counsel for the applicants Mr. W. Sofronoff instructed by Peter J. Davis & Associates

Counsel for the respondent Mr. R. Traves instructed by Feez Ruthing.

ORDER

The statement of claim as amended be struck out.

The costs of and incidental to the application for directions, as to the proceedings on 25 March 1986 only, be taxed and paid by the applicants to the respondent.

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

DECISION

As originally formulated, this was a claim for damages alleging breaches of warranties said to be implied by provisions of the Trade Practices Act, in particular s.71 and following. It was pointed out at a directions hearing that the court has jurisdiction only in respect of contraventions of the Act, and that breaches of the implied terms were not properly so described, and reference was made to the decision of Rogers J. in Zalai v. Col Crawford (Retail) Pty. Ltd. (1980) 32 ALR 187 that of Brennan J. in Arturi v. Zupps Motors Pty. Ltd. (1980) 33 ALR 243, and that of Toohey J. in Polygardy v. Australian Guarantee Corporation Ltd (1981) 34 ALR 391.

2. Counsel for the applicants then asked for an adjournment, and when the matter came on again, conceded that the claim as initially framed was beyond the court's jurisdiction. He produced an amended statement of claim which added an allegation of breach of s. 52 of the Trade Practices Act, that allegation being in substance that the respondent had represented to the applicants that the goods, the subject of the claim, namely a refrigerator, were suitable for their intended purpose.

3. Counsel for the applicants said that the statement of claim, in its amended form, did not require leave by reason of the provisions of 0.13 r. 13(1) which reads :

"A party may, without leave, amend any pleading of
his once at any time before the pleadings are
closed."

4. Nevertheless, it seems clear that the court must be able to determine whether the amendment is one which should properly be made and counsel for the respondent asked that I disallow the amendment which I presumably should do, if I accede to his suggestion, by striking the statement of claim out.

5. I have found consideration of the question one of some difficulty because, although the case is a small one concerning goods of value only about $5,000, counsel for the applicants says that the case was brought here to get a quicker trial and for other reasons which I accept are bona fide.

6. One approach which has, I think, been suggested, is that the bringing of small cases of this sort might be discouraged by making special orders for costs. With all respect to those who hold that view, there must be some uncertainty as to whether it is right to penalize a litigant in costs for exercising a legal right to bring a proceeding in a court to which the law allows him access. However that may be, the question of costs in such a small case must loom large in determining by "impression and practical judgment . . . whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power": Fencott v. Muller (1983) 46 ALR 41 at p 69.

7. As explained by the majority of the judges in that case, the notion of accrued jurisdiction depends in part on questions of convenience, and it has to be conceded that the factor relied on by counsel for the applicants, namely speed, tells in his favour. However, it is my view that the advantage gained in that way is more than counter-balanced by the likelihood that the total costs of litigating the matter here, if it is fought out, are likely to be several times the sum in dispute.

8. I also take into account the fact that so far from the non-federal claim being, as a matter of history, an appendage to a dispute in the area of federal law, the reverse is the case. Here, it appears that the matter was originally brought to this court in error and the federal claim has been added in an attempt to bring the matter within jurisdiction.

9. The scope of the controversy is to be ascertained, on the authority of the same judgment at p. 68, at least in part by reference to the conduct of the proceedings, which I take to encompass questions such as the sequence in which the claims have been raised. Although the notion that the ambit of the jurisdiction of this court be defined by matters of "impression and practical judgment" has been criticized - see for example 58 A.L.J. 440 - it seems clear that the court is not only entitled, but obliged, by virtue of the decision in Fencott v. Muller, to have regard to such matters. On that basis, there seems little doubt that the court should decline jurisdiction in this case, and I do so. It seems to me that the appropriate way to do so is to strike out the statement of claim, and that will be done. The applicants, of course, will have to pay the costs.

10. I had intended to say something about the relevance of this incident as an illustration of the necessity to take some legislative steps with respect to the jurisdiction of this court, but have come to the conclusion that any such comment must be superfluous. The order of the court will therefore be that the statement of claim as amended be struck out, with the costs of the directions hearing (including the costs of both yesterday's proceedings) to be paid by the applicants to the respondent; that there will be no costs of today's hearing.