Byrne v Australia and New Zealand Banking Group Limited

REASONS FOR JUDGMENT 1 These proceedings were commenced by an originating application filed in this Court on 20 December 2012. The "Details of claim" were as follows: 1. Damages pursuant to Trade Practices Act and/or ASIC Act, including sections 236 of the Australian Consumer Law (formerly section 82 of the Trade Practices Act 1974) and/or damages pursuant to Section 12GF of the Australian Securities and Investments Commission Act 2. Damages at Common Law 3. And / or equivalent Consumer Law for Consumer Protection 4. Respondent to be estopped from seeking to enforce any default in relation to Applicant's loans 2 At the first directions hearing on 13 February 2013 the respondent in this Court said that it had in June and July 2012 commenced proceedings in the Supreme Court of New South Wales against the applicants in this Court for possession of certain lands. Pleadings had closed in those proceedings, defences having been filed on 30 July 2012. 3 At a directions hearing on 12 March 2013, I directed that at the interlocutory hearing fixed for 18 March 2013 the following matters should be considered: a. Whether the [first] applicant's affidavit should stand as a pleading; b. Whether as a pleading the [first] applicant's affidavit should be struck out in whole or in part; c. Whether the proceedings should be heard by the same court as the proceedings for possession pending between the parties in the Supreme Court of New South Wales; and d. Whether the respondent should produce documents to the applicants and, if so, which documents or categories of documents. 4 Logically the first matter to be considered was which court should hear the proceedings, it being common ground between the parties that only one court was appropriate. Thereafter the status of the pleadings could be resolved and then discovery of documents. As events transpired, because of late correspondence from the applicants on the question of the form of their pleadings or proposed pleadings it was possible only to deal with the question of the appropriate court. Mr Byrne, who appeared for himself and on behalf of his wife, said at the commencement of the interlocutory hearing on 18 March 2013 that he was in a position to deal with that question. 5 The respondent moved for an interlocutory order, of which notice had been given to the applicants, that: Pursuant to section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) these proceedings be transferred to the Supreme Court of New South Wales. 6 Other interlocutory orders were also sought in the formal notice but for the reasons I have adverted to in [4] above those other issues could not be dealt with. 7 Further facts in relation to the Supreme Court proceedings are that there were two such proceedings, being case numbers 2012/00215843 and 2012/00199876; that they had been held in abeyance pending a determination by the Financial Ombudsman Service; that both matters in the Supreme Court were presently in the possession list before the Registrar on 25 March 2013; and that presently there was no application before the Supreme Court for a transfer of those proceedings to the Federal Court. 8 Section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 is relevantly as follows: (4) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection 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 a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and (B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and (C) 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-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and (D) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court. 9 With reference to s 5(4)(b)(i), it was common ground that the proceeding in the Federal Court is related to the proceedings pending in the Supreme Court of New South Wales. I also satisfied myself that this is so. 10 With reference to s 5(4)(b)(ii)(A), in my opinion the proceedings in this Court would not have been incapable of being instituted in this Court, apart from the cross-vesting legislation. 11 With reference to s 5(4)(b)(ii)(B), in my opinion the proceedings in this Court would have been capable of being instituted in the Supreme Court of a State or Territory, apart from the cross-vesting legislation. The Supreme Court has concurrent jurisdiction. 12 With reference to s 5(4)(b)(ii)(C), it was not put that the matters for determination in the proceedings in this Court involved questions as to the application, interpretation or validity of a law of the state of New South Wales. 13 The law to be applied in this Court and the Supreme Court is the same. 14 As to s 5(4)(b)(ii)(D), the interests of justice, the respondent in this Court submitted that regard should be had to the length of time the Supreme Court proceedings had been on foot and that there was no reason making it clear why the proceedings in the Federal Court had been commenced there or, as a positive matter, that the Federal Court was better suited to hearing and determining the proceedings. The respondent submitted that the interests of justice involved considering the interests of all parties. 15 I accept that by themselves the proceedings presently pending in the Supreme Court of New South Wales could not have been brought in this Court, apart from any effect of the cross-vesting legislation, there being no apparent federal statutory element at that stage. Neither do the defences filed in those proceedings on their face raise a federal element. The burden of the defences is that the defendant or defendants "did not receive the benefit of the mortgage loan funds as they were misappropriated by the Plaintiff. The Plaintiff paid the loan funds, without authority, to a company not involved in this loan and with no claim to giving effect to the purpose of the loan as outlined in the ANZ Letter Of Offer." 16 I accept that the respondent in this Court commenced its possession proceedings in a court of competent jurisdiction. 17 Mr Bellamy of counsel, who appeared for the respondent in this Court, submitted that all of the claims in this Court could have been instituted in the Supreme Court of New South Wales and could have been brought as a defence and cross-claim in the proceedings in the Supreme Court. I accept this submission and I proceed on that basis. 18 Mr Byrne, on behalf of both the applicants, submitted that the Federal Court was the appropriate court. The applicants' claims in the Federal Court were far more complex and the proceedings in the Supreme Court were extremely narrow and did not deal with the majority of the applicants' issues in the Federal Court which were breach of contract; misleading and deceptive conduct under consumer law; and principles of unconscionable conduct. He also submitted that the Federal Court proceedings were more advanced than the Supreme Court proceedings. The applicants were concerned that the matters they wished to raise in the Federal Court proceedings were not or did not become a side issue in the Supreme Court proceedings. Mr Byrne submitted that he had not made an application in the Supreme Court to transfer those proceedings to the Federal Court as he did not think it was appropriate in light of the stay arising from the involvement of the Financial Ombudsman Service. He submitted that the Federal Court was the most appropriate place to deal with Commonwealth law. Mr Byrne submitted that there was no argument of any substance that could not be dealt with in the Supreme Court and equally there was no argument of substance that could not be dealt with in the Federal Court and that the issue was to determine which court is the most appropriate. 19 I do not accept that the proceedings in this Court are more advanced in the Supreme Court proceedings. It is true that they have been two directions hearings in this Court but the question of the form of the applicants' pleading has not yet been resolved; the pleadings therefore have not closed and no other interlocutory steps have been progressed. 20 I also do not accept that the applicants' case would not be able to be articulated and dealt with substantively in the Supreme Court. In my view the substance of the proceedings in this Court could be dealt with in the Supreme Court proceedings. I note and accept Mr Bellamy's submission that in the Supreme Court the possession list is a list within the Common Law Division and all divisions have power to deal with matters which conceivably could have been raised in another division so there was no infelicity that will occur or incapacity that arises in the Supreme Court to deal with all of these matters. 21 Taking into account these matters, I find pursuant to s 5(4)(b)(i) of the Jurisdiction of Courts (Cross-vesting) Act 1987 that it is more appropriate that the proceeding in this Court be determined by the Supreme Court of New South Wales. No additional discretionary matters were put. 22 In the alternative, I find that having regard to the matters in s 5(4)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 it is more appropriate that the proceeding in this Court be determined by the Supreme Court of New South Wales. Again, no additional discretionary matters were put. 23 I do not find it necessary to rely on or separately to refer to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. 24 At or towards the end of his submissions on behalf of the applicants, Mr Byrne applied for an adjournment of the cross-vesting question so that he could get legal advice in relation to it and in relation to the whole process. He wished to put in written submissions. He asked for two to three weeks for this purpose. The respondent opposed any adjournment. The respondent submitted that the Court should proceed on the basis that the applicants in this Court had decided that they did not want to approach a lawyer for the purposes of the interlocutory hearing and submitted that an adjournment for written submissions would unnecessarily add to the costs. I reserved my decision on the question of an adjournment so that I could give it fuller consideration. I have decided to refuse the adjournment application. I take into account that the applicants had agreed to the hearing of the cross-vesting application; that Mr Byrne is in the position of a litigant in person, albeit that he represents not only himself but also his wife; that the matter had been competently argued by Mr Byrne; that the application for an adjournment was made at the end of the hearing; and that the applicants' substantive rights are not affected by the transfer of proceedings to the Supreme Court. 25 In relation to costs, Mr Bellamy submitted that if the respondent's transfer application was successful, the costs of the transfer application should be the respondent's costs in the possession proceedings. In my view the appropriate costs order is that the costs of the application to transfer the proceedings to the Supreme Court of New South Wales be costs in the proceedings as transferred and I so order. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.