Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd [1998] FCA 108

REASONS FOR JUDGMENT HIS HONOUR: In these proceedings, the applicant, the Australian Competition and Consumer Commission, brings proceedings under sections 52, 83C, and 80 of the Trade Practices Act 1974 (Cth) ("the Act"). The proceedings arise out of injury and damage suffered by one Michael John Barnes as a result of his use of a product supplied by the respondent. Relevantly, the proceedings are brought under section 75AQ of the Actwhich provides that the Commission may commence a liability action on behalf of one or more persons identified in the application who has suffered loss. Under section 75AQ(2), the Commission may only make such an application if it has obtained the written consent of the person. There is no dispute that the Commission had obtained the consent of Mr Barnes at the commencement of the proceedings. However, by proceedings No. 81 of 1997 in the District Court of New South Wales at Tamworth, Mr Barnes himself has brought proceedings against the respondent seeking damages said to be the consequence of contravention of the Actand also in consequence of alleged negligence on the part of the respondent. The two counts in the District Court proceedings both relate to the same supply of product by the respondent to Mr Barnes. By notice of motion, the respondent has sought an order under section 86A(4) of the Actfor the transfer of the District Court proceedings into this Court. Proceedings in this Court are fixed for hearing to commence on Monday 23 February 1998 for five days. The proposal is that the matters raised in the District Court proceedings be heard at the same time as the proceedings presently fixed for hearing in this Court and that evidence in one be evidence in the other. The solicitors for Mr Barnes in the District Court proceedings have informed the solicitor for the respondent and also counsel for the Commission that Mr Barnes consents to the orders which are proposed. Section 86A(4) provides that, where a proceeding is pending in a Court other than the Supreme Court of a State and a matter for determination in the proceedings arose under Part V of the Act,that Court must, if directed to do so by the Federal Court, transfer to the Federal Court the matter for determination in those proceedings which arose under Part V and such other matters for determination in the proceedings the determination of which would, apart from cross-vesting legislation, be within the jurisdiction of the Federal Court. The proceedings are brought both by the Commission and Mr Barnes under Part VA of the Act. However, under section 75AS, section 86A operates in relation to an action under Part VA as if references to Part V included references to Part VA. Thus the proceedings in the District Court are proceedings in which a matter arises for determination under Part V which is taken to include a reference to Part VA. It is also clear that the claim in negligence arises out of precisely the same facts and circumstances as the claim brought under the Act. Accordingly, under section 32 of the Federal Court of Australia Act 1976 (Cth), jurisdiction is conferred on the Court in relation to that matter. That section provides that jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. It is not of course possible to devise a precise formula as to the application of section 32. However, where common transactions and facts are involved in the two matters that is usually a fair guide that section 32 will be attracted. That was the view expressed by the joint judgment of the High Court in Fencott v Muller (1983)152 CLR 570 at 607. In Trade Practices Commission v Port Adelaide Wool Company Pty Limited (1995) ATPR 41-441 Branson J of this Court ordered the transfer from the District Court of New South Wales to the Adelaide registry of the Federal Court of proceedings involving the supply of wool. In the District Court proceedings the causes of action pleaded were breach of contract, breaches of conditions implied by the Sale of Goods Act 1923 (NSW), breach of collateral warranty and contravention of section 52 of the Trade Practices Act. Her Honour considered that the other matters for determination in the New South Wales proceedings besides the matter arising under section 52 of the Trade Practices Act were matters the determination of which would, apart from the law relating to cross-vesting of jurisdiction be within the jurisdiction of the Federal Court. I, with respect, agree with her entirely. I consider that the matters for determination in the District Court proceedings brought by Mr Barnes other than the matter for determination which arises under the Trade Practices Act are, under section 32, within the jurisdiction of the Federal Court. Accordingly, I make orders in accordance with prayers one and two of the Notice of Motion of 13 February 1998. I direct that the order may be taken out immediately.