Re Thomas Chung v Wendy Elder and Others [1991] FCA 629 (13 December 1991)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS CHUNG
And: WENDY ELDER AND OTHERS
No. N G439 of 1991
FED No. 924
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Practice and Procedure - Federal Court of Australia Act 1976 (Cth) s 32 - whether purely common law claims can properly said to be associated with matters in which jurisdiction of the Court involved - what amounts to an associated matter - whether Federal claims already disposed of prevent the Court from considering remaining common law claims.

Practice and Procedure - Transfer of common law proceedings to Supreme Court of New South Wales - Associated Federal Court claims well advanced.

Justices Act 1902 (NSW) - s 59

Crimes Act 1914 (Cth) - s 8A

Federal Court of Australia Act 1976 (Cth) - s 32(1)

Kumar v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 130; (1991) 100 ALR 439

Burgundy Royale Proprietary Limited v Westpac Banking Corporation and Ors (1987) 18 FCR 212

HEARING

SYDNEY
13:12:1991

Counsel for the applicant: D. Campbell
(Respondents to this motion)

Instructed by: Verekers

Counsel for the second to ninth respondents: G. Johnson

(Applicants to this motion)

Instructed by: Australian Government Solicitor

ORDER

The application be dismissed.

The applicants to this motion (the 2nd to 9th respondents in the action itself) pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

These proceedings were commenced in this Court by application dated 8 August 1991. There was at that point of time no accompanying statement of claim. Affidavit material was filed with the application and was subsequently considered by the Court. Some urgency attended the filing of the application as proceedings were on foot in a magistrates court in the state of New South Wales and the matters raised in the application had relevance to the conduct of those proceedings.

2. Sixteen orders were in fact sought in the application. When the matter first came before this Court Davies J made orders which resulted in portions of the application being listed for urgent hearing before myself. Those portions of the application were heard and determined by me on 14 August 1991. It is convenient briefly to consider what was then before the Court and what was in fact the balance of the application not then determined.

3. Orders 1 to 6 in the application related to the issuing of a search warrant by the first respondent, a magistrate, in relation to premises at 68-70 Dixon Street, Sydney. The second order related to a similar warrant issued in respect of premises 36 Cox Road, North Ryde. It was sought that orders be made that each of those warrants be quashed as being void, illegal and of no effect. It was further sought that orders be made that search and seizure effected under those warrants be similarly declared illegal and unlawful.

4. By order 4 it was sought that the Court direct the delivery up to the applicant of all items which had been seized, the seizure having been effected under the warrant by the second to ninth respondents who are the current applicants before me. I should perhaps mention that the 2nd to 9th respondents were members of the Australian Federal Police involved in the obtaining of the warrants and their execution.

5. Order 5 sought delivery to the applicant of copies of the relevant information which had been placed before the first respondent and also of lists of items of property seized. Order 6 sought the decision of this Court in relation to a first instance warrant also issued by the first respondent pursuant to s 59 of the Justices Act 1902 (NSW), being an order that that warrant had been issued without jurisdiction and was void and of no effect. I should mention that it was pursuant to this first instance warrant that the applicant was in fact arrested.

6. The balance of the orders sought related to what would arguably be the effect of the making of the previous orders if in fact made. I find it unnecessary to refer at this point of time to any of those orders other than order 14. Order 14 in its content clearly related to the seeking of damages by the applicant for torts allegedly committed against him as set out in the subparagraphs of the order sought. It may be noted that damages were claimed for malicious prosecution, trespass, conversion, detinue, false imprisonment and the like. These are of course clearly common law claims.

7. They were claims at that point formulated only in the form of orders sought in the application. They assented that the applicant had been the victim of tortious activity relating to the invalidity of the warrants and the consequent invalidity of the actions taken against him and his property under those warrants. Also as appeared not perhaps quite so directly from the document itself, but from argument in the case presented on 14 August 1991, they involved allegations as to the improper procurement of the warrant irrespective of its technical validity or invalidity.

8. When the matter came on for hearing on 14 August 1991 it was conceded that there were technical defects in the search warrants referred to in orders 1 and 2 of the orders sought, which necessarily required that they be declared to be invalid, void and illegal. Those concessions having been made the orders sought were made without the necessity of the nature of the invalidity being explored before the Court. They were in fact made by consent. So far as the order sought in order 5 to which I have made reference, the order sought in 5(a) was not pressed. This matter is referred to in the judgment given on the 14 August 1991. The order sought in 5(b) was in effect adjourned for further consideration and was later the subject of a concession at a directions hearing.

9. The considerations raised under order 6 sought were litigated before me on that day. It was the submission of the applicant that there were particular technical grounds of invalidity because of the provisions of s 8A of the Crimes Act 1914 (Cth) relating to the arrest of persons. It was also submitted that certain administrative law considerations required that the issue of the warrant be held to be invalid. There is no need to refer to those matters in detail here, as they are all set out in the judgment of that date. In the upshot it was held that the relevant invalidity of the warrant on these grounds had not been established and a final order to that effect was made. I note that it was expressly stated in the judgment that:

"Other aspects of the case which might be said to relate to the
improper procurement of the warrant as a result of actions
taken on the part of the police do not arise for consideration
in these proceedings today. If they are to be proceeded with
they clearly are matters that will be the subject of some
further hearing in this court in relation to the balance of
the application."

10. Accordingly, so far as the orders sought in the application were concerned, only those orders to which I have made reference were then dealt with, it being expressly understood that the balance of the application remained for subsequent hearing and no doubt for subsequent directions in this Court. On 13 September 1991 the matter came before the Court for directions and a direction was then given that the balance of the application proceed by way of pleadings and that a statement of claim be filed and served on or before 4 October 1991 setting out in a more elaborate form and in accordance with the rules relating to statements of claim the balance of the applicant's case.

11. Subsequent orders were made extending the time for the filing of the statement of claim. It should be noted that a second applicant was added being the Chinese Cultural Club Limited, this clearly being the legal person complaining about unlawful entry into its premises. From what has been put to me from the bar table, I accept that at some point of time it was indicated that an application might be made for these further claims being heard, not in this Court, but in the Supreme Court of New South Wales, this being on the basis that they were purely and simply common law claims and as such should more appropriately be determined in that court.

12. An application to this effect has been brought today. I have been greatly assisted in considering the matter by the careful arguments of counsel and by reference to authority. Having come to a firm conclusion in the matter I am giving judgment immediately. I do not propose to refer in any great detail to the principles of law and the authorities to which I have had my attention directed, as I have come to the conclusion that the matter is indeed fairly straight forward. Although reference has been made to the cross-vesting legislation the bulk of the argument that has been presented to me relates to the application of s 32 of the Federal Court of Australia Act 1976 (Cth) to these proceedings.

13. As I think the matter readily falls for determination under that section I see no reason to advert to any other statutory provisions. That section reads as follows:

"32(1) To the extent that the constitution permits, jurisdiction is
conferred on the court in respect of matters not otherwise
within this jurisdiction that are associated with matters in
which the jurisdiction of the court is invoked."

14. What has been agitated before me in this application is purely and simply, in my view, the question whether these common law claims which have now been spelt out with considerable particularity in the statement of claim filed in this matter by direction of the Court are matters that can properly be said to be associated with matters in which the jurisdiction of the Court was invoked. The question of what amounts to an associated matter in this context has been the subject of a number of decisions in this Court. I have found the decision in Kumar v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 130; (1991) 100 ALR 439 helpful not least because the facts of the matter have a certain parallel with the facts of the matter before me. Certainly in that case there were proceedings brought which clearly involved the purely federal jurisdiction of this Court. Equally obviously there was attached to the claims made for relevant breaches of federal legislation a claim in tort for damages for false arrest and imprisonment.

15. It was not considered by Lockhart J that that claim was not properly justiciable as being associated with the federal claims which were the original basis of the action. I have also gained assistance from the decision of the Full Court of this Court in Burgundy Royale Pty Limited v Westpac Banking Corporation and Ors (1987) 18 FCR 212, particularly in the discussion of the law that appears at pages 218 and 219. I do not think it necessary to set out those passages in these short reasons. What has been put to me on behalf of the applicants who are the respondents to the claims in tort formulated in the statement of claim is that the common law claims to which I have already made reference are in their nature quite separate and severable from the other claims which were instituted by this application and which have been dealt with.

16. It is conceded that the fact that those claims which were admittedly claims properly justiciable in this Court having been disposed of already does not affect the question whether the claims brought at the same time can still remain subject to the jurisdiction of this Court. The fact that the admittedly federal claims have been disposed of, in other words, does not prevent this Court, ipso facto, from considering the remaining claims. This, in my view, appears quite clearly from passages in the Burgundy Royale judgment and, indeed, is conceded quite properly on behalf of the applicants to this motion.

17. Whilst it is perfectly correct that these common law claims cannot be themselves described as being federal in nature this does not, in my view, on the reading of the authorities, prevent them from being associated within the meaning of s 32 with matters in respect to which the court clearly had jurisdiction. One looks at the matter in terms of the proceedings as they were originally brought and not as they currently exist.

18. When one looks at the proceedings as they were originally brought and as they have been elaborated by the statement of claim, they consisted of allegations that warrants had been obtained in a manner which led to fundamental defects in those warrants with the result that they should be quashed and that matters done pursuant to them should be held to be illegal. The fact that certain aspects of that claim were not litigated before the Court but were the subjects of concession when the matter was called on has no bearing, in my view, on the questions in this case. Quite simply, the case as brought alleged relevant invalidity which fell to be determined by this Court and coupled with those allegations of invalidity, allegations of resultant damage as a result of activities undertaken pursuant to the warrants which were rendered tortious by their very invalidity.

19. Other matters were also raised as to the improper procurement of the warrants. Those matters went beyond the question of mere invalidity, but in my view they were all clearly bound up in the factual matrix that was being alleged in the whole of the proceedings. In my view the Court, when these proceedings was brought, clearly had jurisdiction to entertain the common law claims as being as it were part and parcel of the whole of the matter being brought before this Court. The common law claims in my view were clearly associated with the other claims which, it is conceded, fell within the jurisdiction of this Court.

20. In my view the common law claims now sought to be litigated pursuant to this statement of claim clearly fall within s 32 of the Federal Court of Australia Act, with the result that the Court has jurisdiction to hear them. The next question, however, is whether, as a matter of discretion, it would be more appropriate for these claims being at this stage common law claims only, to be transferred from this Court to the Supreme Court. The applicant commenced proceedings in this Court with a view to the matters being heard here. There has been one hearing in the Court where some evidence was given. The matter has come before this Court for directions on a number of occasions. This Court is well and truly seized of the matter.

21. In the absence of consent to the matter being transferred to the Supreme Court, there would necessarily have to be, in my view, fairly strong reasons advanced as to why that court would be the more appropriate court to hear the matter having regard to the interests of the parties. The claim in this Court is fairly well advanced. The statement of claim has been filed. One would expect that once the pleadings are complete a fairly early hearing could be obtained. That is not likely to be the situation in the Supreme Court, especially where there may be initial delays, simply resultant from the fact that the matter has been transferred. I am not impressed by the submission that in the Supreme Court a jury might be obtained. There is insufficient indication before me that the obtaining of a jury for the purpose of determining the questions of fact in this case is a necessary feature of this litigation nor indeed that it is seriously desired on the part of the 2nd to 9th respondents.

22. In my view it is a matter which can quite reasonably be determined by a judge sitting alone and in this Court. I can see no reason which carries any weight with me why the matter should be transferred at this point in time from the jurisdiction of this Court to the Supreme Court and I reject the application.

23. In so far as costs are concerned, this is a matter where costs must follow the event and accordingly I order that the applicants to this motion (the 2nd to 9th respondents in the action itself) pay the respondent's costs.