Caltex Australia Petroleum Pty Ltd v Calypso Haulage Pty Ltd and Ors [2003] VSC 359

5. Calypso was at all material times a company carrying on the business of transporting goods by road throughout Australia. Under the StarCard agreement, Caltex issued Calypso with credit cards called StarCards which might be used by its employee drivers to purchase petroleum and diesel products and other goods on credit at locations throughout the country. Under the StarCard agreement, Calypso was obliged to pay to Caltex the invoice value of these goods purchased with the StarCards. The amounts sought by Caltex is the invoice value of goods contained in its April and May statements and for other goods purchased in May and June 2003.

11. On the same day, 6 August 2003, Calypso commenced a proceeding, V617 of 2003, against Caltex in the Federal Court of Australia seeking declarations that Caltex was guilty of misleading and deceptive conduct and seeking damages under s. 82 of the Trade Practices Act 1974. What is alleged in the statement of claim in the Federal Court proceeding is that Calypso was induced to enter into the StarCard agreement by the following representations made on behalf of Caltex:

"(a) StarCard could be made the subject of an electronic restriction preventing its use to purchase any goods or services except those permitted under the restriction; (b) the StarCard was completely secure and a restricted card could not be misused by the person holding it to make purchases of goods or services outside the restrictions (`the barred products'); (c) a restrictive StarCard could safely be provided to employees without the need to impose further safeguards."

It is said that these representations were false inasmuch as it was possible to purchase barred products using the StarCards and that this was commonly done. It is said that employees of Calypso obtained cash advances and purchased drinks, cigarettes and other non-petroleum goods and that Calypso paid to Caltex an amount in the order of $590,000 for these. Calypso claims damages for the loss of use of this money. It seeks the like damages for this conduct on the basis that the representations were terms of the StarCard agreement and in the further alternative that they were made negligently.

16. By application brought in the Federal Court by notice of motion filed on 8 September 2003, Caltex seeks to have the Federal Court proceeding transferred to this Court pursuant to s. 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the "Commonwealth Act"). This application is returnable on 22 September 2003. I am told that Calypso opposes this application.

19. Before the Court is an application brought by Calypso by summons filed on 10 September 2003 seeking an order that this proceeding be transferred to the Federal Court pursuant to s. 5(1) of the Commonwealth Act.

22. A number of matters are self-evident from the material before me:

1. The two proceedings arise out of the same transaction and represent one controversy. It is not suggested that Calypso has or has ever asserted any defence to the Caltex claim other than its complaint about the purchases of barred products.

2. The competing claims must, as a matter of justice and proper administration of the dispute resolution process, be determined in the one forum.

3. Each of this Court and the Federal Court has jurisdiction to hear and determine all the competing claim. With respect to the claims by Caltex, I accept that, as a common law claim it could not have been brought in the Federal Court. That court has, however, power as part of its accrued jurisdiction to deal with this claim since it is part of the matter properly before that court at the behest of Calypso.

4. The procedure available in each court is such that the claims might be conveniently and properly dealt with in either of them.

29. The question, then, becomes which court is to be the forum. Before me it was submitted that I had no power to transfer the proceeding to the Federal Court and, second, that the interests of justice did not dictate such a transfer.

32. Pursuant to s. 5(1)(b) of the Commonwealth Act the proceeding in this Court might be transferred to the Federal Court in any of three circumstances:

(i) when it arises out of or is related to another proceeding pending in the Federal Court and it is more appropriate that it be determined by the Federal Court;

(ii) having regard to three matters which I shall return to, it is more appropriate that this proceeding be determined by the Federal Court; or

(iii) it is otherwise in the interests of justice that this proceeding be determined by the Federal Court.

38. The equivalent s. 5(1)(b) of the jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) (The "Victorian Act") provides for transfer to the Federal Court only in the second of these circumstances[1]. The first and third circumstances having been repealed in 2000 following the decision of the High Court in Re Wakim; ex part McNally[2].

41. I am satisfied that I have power to transfer the proceeding to the Federal Court if the requirements of s. 5(1)(b)(ii) are satisfied. The subject matter of it is or then will be within the accrued jurisdiction of that court.

44. I am content to approach this application in the manner adopted by Campbell J in Hore v Albury Radio Taxis Cooperative Society Ltd[3]. The court there applied s. 5(1)(b)(ii) of the New South Wales equivalent of the State Act to transfer the proceeding to the Federal Court where there was, as here, pending in the Federal Court a proceeding dealing with the same allegations. As I have mentioned, this provision requires the Court to have regard to three matters in determining the more appropriate forum. These three matters are the following:

"(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory. (B) 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-sub-paragraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and (C) the interests of justice -"

48. Matters (A) and (B) are not appropriate in the present case. Matter (C) requires me to have regard to the interests of justice. Accordingly, in this case I have to consider whether, having regard to the interests of justice, it is more appropriate that this proceeding be transferred. I am satisfied that it is. As I have mentioned, the interests of justice require a common forum for the determination of the competing claims. The substantial controversy between the parties arises from the allegations made by Calypso of misleading and deceptive conduct in the Federal Court. Indeed, if these allegations are not made out it is difficult to see how the alternative claims could succeed. It is very likely, then, that the determination of these claims under the Trade Practices Act will effectively determine the claims of Caltex. In these circumstances, I conclude that it is more appropriate that the Federal Court determines these and all associated issues.

51. I will therefore order the proceeding be transferred to the Federal Court of Australia.

[1] Section 5(1)(b)(ii)

[2] [1999] HCA 27; (1999) 198 CLR 511

[3] [2002] NSWSC 1130; (2002) 56 NSWLR 210 at 224ff