G A R Muirhead & Anor v Commonwealth Bank of Australia & Anor [1994] FCA 921

Federal Court of Australia|1994-11-28|Before: Kiefel J

REASONS FOR JUDGMENT On 24 October 1994 the applicants filed their applications in these proceedings and on the same day delivered a defence in proceedings in the Supreme Court brought by the Bank, the respondent to these proceedings, against them on 13 September 1994. The Commonwealth Bank, by its statement of claim in those proceedings, seeks the balance of moneys due to it under financial facilities and after allowing for the proceeds of sale of property together with sums said to be due under a

number of orders for costs made in the Supreme Court in various actions or applications.

court raise the same issues, as was conceded by counsel for the Muirheads. Whilst Mr

Harris, the receiver appointed by the bank, 1s not presently joined in the Supreme Court proceedings there appears to be no reason why he could not be joined as a party to a counter-claim. The other, previous, proceedings in the Supreme Court do not appear to be of particular relevance to this application save in one respect, namely that it will apparently be contended for the Muirheads, in whichever court determines the issues arising between them and the bank, that the bank is estopped from raising a particular

The bank has applied to stay these proceedings temporarily as distinct from

permanently (as to which see Sterling Pharmaceutical Proprietary Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287, 294-5) or to have these proceedings

transferred to the Supreme Court under the provisions of the cross-vesting legislation. The issues raised by the Muirheads will require reference to some Commonwealth statutes, in particular the Bills of Exchange Act and the Trade Practices Act, and to the Constitution itself. It also appears, however, that allegations concerning the bank's breach of its duty as mortgagee on sale will require reference to the Queensland Property Law Ast, and Mr Fitzgibbon of counsel, who appeared for the Muirheads, informs me that

another Queensland Act, an earlier Bill of Exchange and Other Instruments Act, will also be relied upon.

The principal submissions for the Muirheads were twofold. Firstly, that the action is, in reality, one brought against the Commonwealth, or more particularly an

Officer of the Commonwealth within section 39B of the Judiciary Act 1903, and as such is

a special Federal matter within section 3(1)(e) of the Jurisdiction of Courts (Cross- Vesting) Act 1987. Secondly, it was submitted this court had special expertise in relation

to the matters raised. It 1s, as the bank concedes, correct to say that the bank was "the Commonwealth" at May 1990, the time when certain contraventions of sections 52 and 52A of the Trade Practices Act are alleged to have occurred or at least commenced, the conduct being said to range over a period to July 1992. From about December 1990, however, the bank has been owned only in part by the Commonwealth and a percentage, the extent of which is not agreed, is held by the public after subscription to shares. It seems to me, however, that these proceedings are brought against the Bank as constituted at the date of the filing of the application, at which time it could not be characterised as "the Commonwealth". But in any event, as Mr McMurdo QC for the bank points out, the "matter" here for the purpose of section 39B is not one in which relevantly a writ of mandamus or an injunction is sought against an officer of the Commonwealth. Some

mandatory orders are sought, but against the bank itself and not any officer of it. Neither

section 84(2) Trade Practices Act, nor the provisions of the Crimes Act alters the orders

In relation to the second matter, it seems to me that the Supreme Court, dealing as it does regularly with commercial matters, would often have resort to the provisions of the Bills of Exchange legislation and would commonly deal with actions in which section 52 or 52A Trade Practices Act are raised. The contraventions here alleged do not seem to me to raise any special or discrete matter by which it could be said this

court had greater breadth of expertise or special interest in the questions arising.

A remaiming submission, namely that there would now be an apprehension

of bias if the Supreme Court were to hear the matter was faintly raised but not pursued.

The timing of the institution of actions is often an important question in these applications. The attidavits here disclose that the possibility of proceedings being commenced in this court was first raised by the applicants on 5 October 1994 and after the Supreme Court proceedings had issued. Whilst Mr Fitzgibbon says there was earlier general mention of that possibility, the affidavit by his instructing solicitor does not refer to it. The bank did not for its purposes need to bring proceedings 1n this court. Whilst the material also shows a desire at some point to have proceedings issue out of the Federal Court and m Sydney for the convemience of the Muirheads, given their intention to reside at Queanbeyan, that is no longer the case, and I am told a positive decision has

The courts discourage duplicity ot proceedings. It seems to me that a temporary stay would have the potential to encourage just that, or at least lead to a position where there 1s lengthy argument as to whether something has been determined in the other proceedings In these circumstances, I propose, then, to transter the proceedings to the Supreme Court. I order that these proceedings, number QG146 of 1994, be transferred to the Supreme Court of Queensland to be heard with action number 1452 of 1994,

I further order that the applicants pay the respondents' costs of and

incidental to this application and to the proceedings to date to be taxed.

I certify that this and the preceding four pages are a true copy of the Reasons for judgment herein of the Honourable Justice

Kiefel. Date: 28 November 1994 Associate Counsel for the applicant: Mr D.C. Fitzgibbon Solicitors for the applicant: Woodgate Morgan Counsel for the respondents: Mr P.D. McMurdo QC Solicitors for the respondents: Gadens Ridgeway

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