Pillifeant, Robert Mark & anor v Colemma Pty Ltd [1984] FCA 408

ROBERT MARK PILLIFEANT and JEANETTE MARIE PILLIFEANT

Applicants AND: COLEMMA PTY LTD Respondent ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 30 OCTOBER 1984 WHERE MADE: BRISBANE

1. That any further proceedings on this application be stayed pending the determination of the proceedings constituted by Supreme Court Writ No. 2243 of 1983.

2. Each party have liberty to apply.
3. The applicants pay the respondent's costs

of and incidental to this application, including reserved costs, to be taxed.

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G95 of 1984

ROBERT MARK PILLIFEANT and JEANETTE MARIE PILLIFEANT

These proceedings were commenced by an application to

the Federal Court dated 6 September 19984. The applicants in that

application seek, essentially, a declaration that a certain

contract is void, alternatively, a declaration that the contract is rescinded, return of the deposit, and damages pursuant to

s$.82, or alternatively 3.87, of the Trade Practices Act 1974

The respondents, after entering an appearance, by notice of motion seek orders that any further proceedings in this application be stayed pending the determination of the

proceedings constituted by Supreme Court writ number 2243 of 1983

This application raises a common question, caused by the fact that the jurisdiction of the Federal Court in respect of s.52 conduct under the Act 18 exclusive, and in relation to the general principles that are involved where there is a conflict of

jurisdiction involving that matter. The primary principles are

set out in the judgment of the High Court in Stack v. Coast Securities (No. 9) Pty Ltd £19833 57 A.L.J.R. 731. At p.738

there is discussion of the principles and the Chief Justice said:

",.. It is a defect in the judicial system that in some cases duplication of proceedings 18 inescapable, and a multiplication of

applications whose sole purpose is to resolve jurisdictional conflicts is highly likely. The only effective remedy for this overlap of jurisdiction, which tends to place two superior courts in unbecoming conflict, is to anend the Trade Practices Act s0 as to provide that the jurisdiction of the Federal Court, at least in actions and other proceedings under Pt VI which relate to an alleged contravention of a provision of Pt V, should no longer be exclusive. "

In the joint judgment of their Honours Mason, Brennan and Deane JJ, it is made clear that the general rule is that the court which has the capacity to solve all questions in dispute ought primarily to be the court of trial. I am quite conscious of those principles. Nonetheless, the justice of any particular application has to be determined in the circumstances as they

obtain at the time of the application. To put the parties out of

their misery, I will indicate that I will stay the proceedings in

The writ of summons in the Supreme Court of Queensland was dated 6 May 1983. All pleadings have been delivered in the Supreme Court action. Affidavits of documents of each party have been completed and mutual inspection of documents has' taken place; interrogatories have been delivered and have been answered. On 24 July 1984, a certificate of readiness for trial was executed by the present applicants' solicitors. All entry of trial documents have been filed, and the matter is awaiting appointment to the call-over and allocation of a trial date, so

that everything that can possibly be done in respect of the

resolution of the issues in the Supreme Court has been done, bar

Proceedings here were not, it appears, mentioned by the present applicants until a letter dated 5 September 1984, which is before me as exhibit "M" to the affidavit of Mr Hickey. That

"We refer to previous correspondence in this matter and advise that we have instructions to take proceedings in the Federal Court of Australia. The application and Statement of Claim have been prepared and will be served shortly. We would ask that you advise, after receipt of your client's instructions, as soon as possible whether your client agrees that the Federal Court now has exclusive jurisdiction in the matter and will agree to the proceedings in the Supreme Court being adjourned to the abeyance list."

When one has regard, inter alia, to the extent to which proceedings have gone in the Supreme Court, to the costs both parties have already expended in the resolution of the issues there, to the fact that if proceedings were to proceed here there would be a disgraceful extent of duplication and waste of those costs and when one has regard also to the fact that the applicants have delayed, in my view, guite unconscionably, in bringing their proceedings here, and that there is quite a substantial identity of factual issues which will goa long way to resolving the issues in this court by reason of estoppel, (although they will not completely resolve the matters as the issues are not identical) it seems to me that the overwhelming dictates of justice require that the proceedings in the Supreme Court continue to completion as quickly as possible, and the proceedings here, which are still in their infancy, be stayed

I indicate that there cannot be too much concern, really, so far as time delay in proceedings here are concerned, because I am sure that after the matters in the Supreme Court have been resolved, this matter can be very quickly brought on in this court so that if there are any outstanding matters, it will not, as a matter of practical reality, mean any delay in

This case quite simply illustrates that the facts of a

particular matter is the proper basis on which the decision in

that matter should be made, and I am clearly of the view that as

a matter of substantial justice between the parties the

proceedings in this Court should be stayed pending the outcome of

the Supreme Court matters. I therefore propose to grant the notice of motion and order that any further proceedings on this

application be stayed pending the determination of the proceedings constituted by the Supreme Court writ number 2243 of

1983. Lest there be any dilatory conduct in respect of those matters, I give each party liberty to apply here. On the

question of costs, may I indicate that I will hear the parties, but my present intention is that the applicants pay the

respondent's costs of and incidental to this particular

application, including reserved costs, to be taxed. I corti'y thay i" > crt