Pamela Ashcroft t/as Fit & Ready for Work v Macquarie Equipment Rentals Pty Ltd

REASONS FOR JUDGMENT 1 It would appear that there are a number of matters presently listed for hearing in the Local Court of New South Wales at the Downing Centre Registry of that Court in which the plaintiff is Macquarie Equipment Rentals Pty Ltd ACN 112 079 268. The several defendants in the proceedings in the Local Court of New South Wales numbers 68925/09, 57745/08, 68911/09, 57740/08, 57744/08, 68901/09, 57017/08 and 57732/08 were Pamela Ashcroft t/as Fit & Ready For Work, Ecosystems Management (Aust) Pty Ltd t/as Ecosystems Management ACN 061 839 281 and Ian Raymond Long, Gonzales Pty Ltd t/as Alfab Manufacturing ACN 008 217 847 and Phillip Rosewall, Chrystal Lake Pty Ltd T/as The Adelaide Built-In Joinery ACN 008 094 719 and Richard J Bielby, Coronam Pty Ltd T/as The Color Machine ACN 051 964 740 and Clive Wallace, Neil Allen Covill T/as Cooroy Glass Service and Jennifer Gayle Covill T/as Cooroy Glass Service, Maranine Pty Ltd T/as Cooroy Wholesalers ACN 103 723 271 and Marc Arundle Colwell, Austy Pty Ltd ACN 050 485 339 and Kiyomi Johnston respectively. 2 It is appropriate to note that in matter number 57740/08 the plaintiff was identified as Macquarie Equipment Rentals Pty Ltd Attwood Marshall ACN 112 079 268 rather than simply Macquarie Equipment Rentals Pty Ltd. Similarly, in matter number 57732/08 the plaintiff was identified as Macquarie Equipment Rentals Pty Ltd Attwood Marshall ACN 112 079 268. 3 It would appear that the defendants in each of the Local Court matters came from distant parts, including Pottsville NSW, Bairnsdale Victoria and Granite Rock Victoria, Murray Bridge South Australia, Wayville South Australia and Banksia Park South Australia, Brackenridge Queensland, Cooroy Queensland, Murray Bridge South Australia and Surfers Paradise Queensland and Mudgeeraba Queensland. 4 The amounts claimed in the several Local Court matters vary from a low of $8,558.46 in the claim against Pamela Ashcroft t/as Fit & Ready for Work to a high of $48,534.07 in the claim against the Covills. 5 It would appear that the several defendants in the proceedings, which have been identified, were represented by a firm of solicitors located in Coolangatta, Queensland, namely Attwood Marshall Lawyers. They have been replaced by the current solicitors for the several defendants, Doyle Wilson of Goondiwindi in Queensland. 6 By a Notice of Motion filed 30 June 2009 in this Court in proceedings NSD 637 of 2009, Pamela Ashcroft T/as Fit & Ready for Work sought the following orders: '1. That pursuant to the Courts (Cross Vesting) Act 1987, the proceedings commenced in the Local Court of New South Wales, Downing Centre No. 68925/09 be transferred to the Federal Magistrates (sic) Court of Australia. 2. That pursuant to the Courts (Cross Vesting) Act 1987 the proceedings commenced in the Local Court of New South Wales, Downing Centre Nos 68911/09, 57740/08, 57744/08, 68901/09, 57745/08 be transferred to the Federal Court of Australia. 3. That pursuant to Order 29, rule 5 of the Federal Court Rules the Court order that the proceedings be consolidated.' 7 A supporting affidavit sworn 25 June 2009 of a Senior Associate Solicitor employed by Doyle Wilson disclosed that Doyle Wilson had instructions to act on behalf of Pamela Ashcroft trading as Fit & Ready for Work Pty Ltd (sic) in relation to the claim brought against the defendant by Macquarie Equipment Rentals Pty Ltd in the Local Court proceeding number 68925/09. It may be observed that, whilst evidence was provided in that affidavit of other proceedings No. 57017/08, in fact the Notice of Motion sought no relief in respect of the transfer of that matter into this Court. 8 On the last occasion when this matter was before the Court the barrister then representing Pamela Ashcroft had no apparent knowledge of the matter at all. He informed the Court that senior and junior counsel from Sydney would be appearing for Pamela Ashcroft at a later stage of the proceedings. Counsel for Macquarie Equipment Rentals Pty Ltd submitted that Ms Ashcroft's Notice of Motion was misconceived. 9 I stood the matter over for directions to 9:30am today and directed that the applicant, that is to say Ms Ashcroft, file and serve a written submission identifying the Court's jurisdiction to make the orders sought in paragraphs 1 and 2 of her Notice of Motion filed 30 June 2009 on or before 27 July 2009. On 27 July 2009 such a submission was filed which had been prepared by another senior counsel, said to be counsel for the applicants (sic) from Brisbane. 10 When the matter was called for mention earlier today a variety of different forms of Amended Notice of Motion were handed up, leave to file which in Court, was sought. The ultimate form of Amended Notice of Motion sought orders in the following terms: '1. That pursuant to S.86A(4) of the Trade Practices Act 1974, the proceedings commenced in the Local Court of New South Wales, Downing Centre Nos. 68925/09, 68911/09, 57740/08, 57744/08, 68901/09, 57745/08, 57732/08, 57107/08 be transferred to the Federal Court of Australia. 2. That pursuant to Order 29, Rule 5 of the Federal Court Rules the Court order that the proceedings be consolidated.' 11 It will be apparent that the applicant has abandoned the suggestion that the Court had power to order the several proceedings mentioned in the original Notice of Motion to be transferred to the Federal Magistrates Court of Australia or the Federal Court of Australia under an Act referred to as the 'Courts (Cross-Vesting) Act 1987'. Section 86A(4) of the Trade Practices Act 1974 (Cth) (the 'Trade Practices Act') does not confer power on the Federal Court of Australia to order that proceedings commenced in another court be transferred to this court. It provides as follows: '86A(4) Where: (a) a proceeding is pending in a court (other than the Supreme Court) of a State …; and (b) a matter for determination in the proceeding arose under … Division 1, 1A or 1AA of Part V; the court shall, if directed to do so by the Federal Court, transfer to the Federal Court the matter referred to in paragraph (b) and such other matters for determination in the proceeding, the determination of which would, apart from any law of a state … relating to cross-vesting of jurisdiction, be within the jurisdiction of the Federal Court as the Federal Court determines.' 12 It is apparent that in the application brought in Ms Ashcroft's matter the Court would not have any power to transfer proceedings in the other seven Local Court matters as sought. 13 The question which arises is why the Court should, in the case of Ms Ashcroft's matter, make an order under s 86A(4) in circumstances where the subject of those proceedings and the amounts involved make them eminently suitable for determination in the small claims division or a general claims division of a Local Court. 14 The reason which is proffered is that whilst the Local Court of New South Wales may have jurisdiction under s 86(2) with respect to matters arising under Divisions 1, 1A or 1AA of Part V of the Trade Practices Act, such a court does not have jurisdiction in respect of matters arising under Division 2 of Part V of the Trade Practices Act. One of the sections within Division 2 of Part V is section 73 headed 'Liability for Loss or Damage from Breach of Certain Contracts'. Ms Ashcroft asserts that in relation to the claim which has been made against her she is entitled to make cross-claims for relief under s 73 of the Trade Practices Act in addition to the claims which she has already made for relief under other provisions of the Trade Practices Act in relation to which the Local Court of New South Wales does have jurisdiction. 15 In the Statement of Claim filed in the Local Court of New South Wales in Ms Ashcroft's matter the claim is essentially one for breach of a written rental agreement. A Defence was filed and also a Cross-Claim. One might have thought, at first glance, that the matters raised by way of defence are more suited to a cross-claim than to a defence, but that is not a matter for detailed consideration at present. The Cross-Claim repeats and relies on paragraphs 1 to 19 of the Defence. The relief which is sought under the Trade Practices Act includes relief under s 87 declaring the rental agreement on which Macquarie Equipment Rentals Pty Limited has sued to be void and of no effect and to be set aside. 16 Whilst I have considered the possibility of allowing the matter to go to trial in the local court on the basis that any judgment against Ms Ashcroft would be stayed pending the determination of a cross-claim which could be brought only in this court, on reflection I have come to the view that all issues in Ms Ashcroft's matter should be heard at the one time. Accordingly, as it is clear that a claim will be forthcoming under s 73 of the Trade Practices Act, matters for determination under the Trade Practices Act, at least, should be removed to this court thereby enabling matters by way of cross-claim to be raised under s 73 as well as the other provisions of the Trade Practices Act relied upon in the present cross-claim. 17 In relation to the question of costs, I have heard what has been put by senior counsel for Ms Ashcroft. He does not oppose an appropriate order for costs in respect of the costs of the last directions hearing on 6 July 2009 which were thrown away. He does, however, resist the imposition of a blanket order for costs against Ms Ashcroft in relation to the relief sought in the Notice of Motion and the Amended Notice of Motion filed in Court today. 18 In relation to the claim for transfer of the other seven proceedings to this Court, in the motion to which Ms Ashcroft alone is a party, the application is plainly incompetent. 19 In relation to the transfer of Ms Ashcroft's proceedings from the Local Court to this Court, I am of the opinion, as previously expressed, that it is beyond power. 20 In my opinion, the appropriate order for costs is that the applicant pay the respondent's costs of the Motion and of the Amended Notice of Motion and that such costs be paid on an indemnity basis. Furthermore, I am of the opinion that such costs should be taxable and payable forthwith. 21 Needless to say, it is beyond the power of the Court to make an order for consolidation of proceedings that are not presently before it. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.