Bodycorp Repairers Pty Ltd v Maisano

REASONS FOR ORDERS 1 By notice of motion filed 1 August 2005, the applicant sought orders: · transferring the proceeding to the Supreme Court of Victoria; · joining the seventh and eighth respondents; and · staying a costs order made by a Registrar of the Court. These reasons address only the first of the above points. 2 The proceeding has lain dormant for some time. It was commenced on 12 December 2002. On 12 January 2004, a Registrar of the Court ordered that it be stayed until the applicant gave security for costs. That security was not given until 27 June 2005. In the meantime, the proceeding has seen a number of changes of solicitor. 3 The applicant is preparing a further amended statement of claim to replace its amended statement of claim. The amended statement of claim alleges: (a) the breach of a franchise agreement between the applicant and the first to third respondents; (b) the breach of a franchise agreement between the applicant and the seventh respondent; (c) the procurement and inducement by the second and eighth respondents of the breach of various franchise agreements between the applicant and some of its franchisees; (d) the procurement and inducement by the fourth and sixth respondents of the breach of various franchise agreements between the applicant and some of its franchisees; (e) the breach of an agreement between the applicant and fourth respondent; and (f) false and misleading representations by the fourth respondent. The allegation at (f) is grounded in ss 51A and 52 of the Trade Practices Act 1974 (Cth) (the Act). The allegations at (a) to (e) are grounded in common law. 4 By an affidavit of its solicitor and a statement from the Bar table of its counsel, the applicant has foreshadowed that the further amended statement of claim will not include the allegation at . That is, the foreshadowed further amended statement of claim will be grounded entirely in common law. Notwithstanding that, all the parties present at the hearing of the motion indicated that they would prefer the proceeding to remain in this Court. To that end, counsel for the applicant did not press the request for transfer and submitted that the decision of the Full Court of this Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173 meant the proceeding could remain in this Court. 5 Nonetheless, s 5(7) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) allows the Court to transfer a proceeding on its own motion. What follows are my reasons for so doing. 6 In my opinion, the decision in Burgundy Royale Investments does not mean that the proceeding can remain in this Court. In that case, the applicants sought damages against several respondents - including the Northern Territory and the Territory Loans Management Corporation - for breaches of the Act, breach of contract and negligence. The Full Court held that the Territory and the Corporation were not bound by the Act but that the Court had accrued jurisdiction to grant relief against them in respect of breach of contract and negligence. The Full Court said at 180 that "the federal claims and the common law claims attached to the federal claims so depend upon common transactions and facts that they arise out of a 'common substratum of facts'." The Full Court also said at 181 that the accrued "jurisdiction cannot be limited … to the determination of only those claims, federal or attached, which are successfully maintained … the jurisdiction is to entertain, and determine, all claims constituting a 'matter', whatever their ultimate fate." However, the latter observation is predicated on the former. The existence of accrued jurisdiction depended not on whether the claims under the Act could be maintained but whether they and the common law claims together constituted a "matter". 7 Similarly, in Glass v New South Wales (1994) 52 FCR 336 Sheppard J said at 339: "The effect of the authorities is that this Court will have accrued or attached jurisdiction to deal with a non-federal claim if it has before it a federal claim and, connected with that claim is a non-federal claim the resolution of which depends upon facts and circumstances identical with or closely connected with or common to those in question in the federal claim. Sometimes it is said that the two claims, federal and non-federal, must have a common substratum of fact. Unless those conditions exist, the Court will not have jurisdiction." 8 The false and misleading representations that form the basis of the only extant federal claim in the proceeding are alleged to have been made by the fourth respondent - a motor vehicle insurer - to its policyholders and the public. They were to the effect that: · policyholders' vehicles would only be repaired with "original equipment of the vehicle manufacturer"; · policyholders' vehicles "would be repaired and restored to pre-accident condition"; and · the use of "non-genuine parts" in the repair of policyholders' vehicles "was not acceptable". 9 The extant federal and non-federal claims in the proceeding do not share a common substratum of fact. One need only compare what is set out at to (e) and [8] to see that. The conduct that is the subject of the federal claim is wholly unrelated to that which is the subject of those non-federal claims that concern the fourth respondent. It is not even directed at the same persons. Indeed, I note that on 9 October 2003, the then solicitors for the fourth, fifth and sixth respondents wrote to the then solicitors for the applicant as follows: "We note that paragraphs 49 to 53 inclusive [ie the federal claim] have no connection with any other parts of the claim and appear to have been added solely for the purpose of attracting federal jurisdiction. … We are of the view that the claim should not be brought in the present proceeding. The joinder of the alleged cause of action is plainly inconvenient and should be struck out from the proceeding …. … Accordingly, paragraphs 49 to 52 inclusive should be struck out from the proceeding and we put you on notice that our client will be issuing a Notice of Motion to strike this claim out …." According to the affidavit referred to at [4], such a notice of motion was filed and "appears to remain extant". 10 Quite apart from the foregoing, I would exercise my discretion to transfer the instant proceeding to the Supreme Court of Victoria. As noted at [2] and [4], the proceeding has lain dormant for some time and is about to be (effectively) restarted on a new footing. Notwithstanding their desire, the parties will suffer no greater material inconvenience or prejudice if the proceeding is transferred. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.