2. The parties have attended before me and have indicated that they wish the issues of fact raised by the pleadings, the particulars and further particulars to be remitted for hearing and determination and the only question for my decision is whether the remitter should be made to the Federal Court (as the plaintiffs contend) or to the Supreme Court of Queensland (as the State of Queensland contends). The Commonwealth is neutral on this question and made no submissions upon it.

3. It is hardly necessary to say that either of the two courts could satisfactorily resolve the issues of fact in the case. Mr Castan, who appeared for the plaintiffs, relied on two particular matters which in his submission indicated that the Federal Court was the more appropriate tribunal. First, he submitted that the Rules of the Federal Court give that court a wider power to dispense with the rules of evidence than that possessed by the Supreme Court of Queensland. He pointed to O.33 r.3 of the Federal Court Rules, which provides:

(b) dispense with compliance with the rules

of evidence where such compliance might

occasion or involve unnecessary or

unreasonable expense or delay, including,

but without limiting the generality of

this power, compliance with the rules

relating to proof of handwriting or of

documents and the proof of the identity

of parties or of authority."

Under the Rules of the Supreme Court of Queensland, a party to an action may take out a summons for directions at any time before judgment (O.20 r.1(1)) and upon the hearing of the summons the court or a judge or registrar may give such directions with respect to the proceedings as the court or judge or registrar thinks proper (O.20 r.2(1)). Order 20 r.2(2) then provides, inter alia:

"Without prejudice to the generality of the

last preceding paragraph, the Court or a Judge or

registrar may -

(b) order that evidence of a particular fact

or facts, to be specified in the order,

shall be given at the hearing or trial -

(i) by statement on oath of information

and belief;

(ii) by production of documents or

entries in books;

(iii) by copies of documents or entries;

(iv) otherwise as the Court or Judge or

registrar directs;

The present case may involve a consideration of public records and other old documents, but Mr Castan was not able to give any example of a situation in which expense or delay might be obviated by an order under the Federal Court Rules but could not be obviated by an order under the Rules of the Supreme Court of Queensland. I do not consider that for practical purposes the Federal Court is put in any position of advantage over the Supreme Court of Queensland by reason of the difference between the Rules of the two courts - a difference which seems to me to be mainly one of words and which in any case has not been shown to be likely to be significant in the present case.

4. Mr Castan's second point was that the counsel presently engaged in the case on behalf of the plaintiffs who are not members of the Queensland bar might not be entitled to appear in the Supreme Court of Queensland if the action is remitted to that court. That argument, however, is groundless. If part of the matter is remitted to the Supreme Court of Queensland, that court will be exercising federal jurisdiction in hearing it. Any person entitled to practice as a barrister or solicitor, or as both, in a federal court will then have a right of audience in the State court in the matter: s.55B(4) of Judiciary Act.

5. Mr Byrne, for the State of Queensland, on the other hand, pointed out the close connexion which the action has with the State of Queensland - the plaintiffs are residents of Queensland, the subject-matter of the action is land in Queensland and the principal relief is sought against the State of Queensland. If the action had not been commenced in this Court, the only available forum would have been the Supreme Court of Queensland. There would be no power to remit the matter to the Federal Court under s.44(1) of the Judiciary Act, because the Federal Court has no jurisdiction with respect to the subject-matter of the action. Power exists to remit the matter to the Federal Court under s.44(2A), but only because the Commonwealth is a party, and as I have indicated the interest of the Commonwealth in the matter appears to be minor compared with that of Queensland.

6. When a decision is to be made as to the court to which a matter or part of a matter should be remitted under s.44 of the Judiciary Act, and the applicable law in the competing tribunals is substantially similar, the balance of convenience is of great importance: Pozniak v. Smith [1982] HCA 39; (1982) 56 ALJR 707, at p 711; [1982] HCA 39; 41 ALR 353, at pp 358-9. However, in the present case, it has not been shown that proceedings in one court would be more convenient than in the other. There will be no difference in the substantive law to be applied, and the one suggested difference between the respective powers of the two courts has not been shown to be significant. In these circumstances the considerations upon which Mr Byrne relies appear to me to be decisive. The close connexion of the action with Queensland, and the fact that if the action had not been commenced in this Court it would necessarily have been commenced in the Supreme Court of Queensland, lead me to exercise my discretion in favour of ordering a remitter to the Supreme Court of Queensland.

7. The parties agreed that any question whether the determination of the particular issues raises a question of fact or a question of law should be reserved for the determination of this Court. I hope that the proper course of proceedings in the Supreme Court will not be interrupted by applications to this Court. However, to enable this Court to give any directions that may prove to be necessary in that or any other respect, I shall reserve liberty to apply.

1. Remit all issues of fact raised by the

pleadings and the particulars and the further

particulars to the Supreme Court of Queensland

for hearing and determination.

2. Grant liberty to any party to apply on two

days' notice to the other parties.

Grant leave to the plaintiff to reply within twenty-eight days.

Each party to deliver a list of any documents relied upon by it at the hearing which have not already been discovered by it to the other parties and make the same available for inspection by 30 June 1986.

Remit all issues of fact raised by the pleadings and the particulars and the further particulars to the Supreme Court of Queensland for hearing and determination.

Grant liberty to any party to apply on two days' notice to the other parties.