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[2020] FCA 1707
Federal Court of Australia
2020-11-27
Wigney J
Original judgment source is linked above.
WIGNEY J: 1 On 23 November 2020, I made orders exercising the power conferred by s 32AB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rr 27.11 and 27.12 of the Federal Court Rules 2011 (Cth) (FC Rules) to transfer the present proceeding to the Federal Circuit Court of Australia. These are my reasons for making those orders.
Supreme Court proceeding 2 The proceeding was commenced on 7 February 2020 in the Supreme Court of the Australian Capital Territory (ACTSC) by the filing of an originating application and affidavit by the applicants, Louisa Meng Li Sijabat and Nick Jim Combis, the joint and several Trustees of the Bankrupt Estate of the first respondent, Tien Dung Do, also known as Tein Dung Do. 3 The originating application sought various "substantive" and "interim" orders on the following grounds: 1. The Affected Property is currently the subject of the FCCA Proceedings between the [Trustees] and the First [Respondent]. 2. The [Trustees] are seeking orders in the FCCA Proceedings pursuant to sections 19(1) and 30 of the Bankruptcy Act 1966 (Cth) (Act) in the form of declarations that: a. The Affected Property is not held on trust for the Andrew Superannuation Fund; and b. The First [Respondent] is the registered proprietor and sole beneficial owner of the Affected Property, and as such, the Affected Property vests in the [Trustees] pursuant to section 58 of the Act; and c. The Andrew Superannuation Fund does not have any beneficial interest in the Affected Property; and d. The Affected Property is divisible amongst the creditors of the bankrupt estate of the First [Defendant]. 3. The [Trustees] accordingly require for there to be no changes made to the title of the Affected Property until the FCCA Proceedings have come to a resolution. (Emphasis in original.) 4 The Trustees sought seven substantive orders, four of which are relevant for present purposes: first, the operation of caveat 2064609 lodged by the Trustees is extended until further order or until such other time ordered by the ACTSC; two, that the notice of appointment of trustee (instrument number 2259644) (Notice), which had been lodged for registration on the property known as Unit 4 of Unit Plan 2983, Block 6-13 on Deposited Plan 10267, Section 14, Gungahlin in the Australian Capital Territory (ACT), also known as Unit 4, 38 Gozzard Street, Gunaghlin ACT 2912 (Affected Property), is stayed until further order or until such other time ordered by the ACTSC; third, the notice to caveator of lodgement of instrument for registration dated 24 January 2020, which was served on the Trustees in relation to the Notice on or about 31 January 2020, is stayed until further order or until such other time ordered by the ACTSC; fourth, that the matter is returnable before the ACTSC on a date suitable to the court, but after final orders are entered in a related Circuit Court proceeding (file number CAG 74 of 2019) (Circuit Court proceeding). The remaining substantive orders sought by the Trustees related to or concerned costs. The interim orders that were sought related to or concerned the commencement of the proceeding, including orders pertaining to the service of documents. 5 The originating application was stated to be supported by an affidavit of Ms Sijabat affirmed on 6 February 2020. A copy of that affidavit was not provided to or filed in this Court. The Court was provided, however, with a copy of an affidavit of Neil Samir Bookseller affirmed on 7 February 2020. Mr Bookseller, a solicitor of the law firm retained by the Trustees, deposed that: on 6 February 2020, he emailed an unsealed copy of the originating application and the affidavit of Ms Sijabat to the first respondent; he received an email from the first respondent confirming receipt of those documents on the same day; and that on 7 February 2020, he emailed the first respondent with the listing time of the hearing of the originating application. 6 Two points should be briefly noted about Mr Bookseller's affidavit. First, while the first respondent did reply to Mr Bookseller's first email and thereby acknowledged receipt of it, the first respondent's reply was to contest the basis of the orders sought. In brief terms, the first respondent claimed that the Affected Property "belong[ed] to Andrew Superannuation Fund since 2010", that the Trustees were therefore operating under a "wrong assumption", and that, if this were to persist, he would seek a "subpoena … so the court could easily see the [true] fact". Second, while Mr Bookseller's second email to the first respondent informed him that the matter was listed in the ACTSC at 10.00 am on 7 February 2020, that email was sent at or around 9.13 am on the same day. 7 It is, perhaps, somewhat unsurprising that, in light of the above information, the orders of Crowe AJ only list an appearance for the Trustees when the matter was heard before his Honour on 7 February 2020. The orders also state that the affidavits of Ms Sijabat and Mr Bookseller were read by the Trustees. No other information has been provided to this Court regarding what was submitted to or raised before his Honour. 8 The orders of Crowe AJ made on 7 February 2020 were as follows: 1. The operation of caveat 2064609 lodged by the [Trustees] on 8 December 2016 on the property known as Unit 4 of Unit Plan 2983, Block 6-13 on Deposited Plan 10267, Section 14, Gungahlin in the Australian Capital Territory, also known as Unit 4, 38 Gozzard Street, Gunaghlin ACT 2912 (Property) is extended until further order of the Court. 2. The Registrar-General of the Australian Capital Territory be restrained from registering any dealing on the Property until further order of the Court. 3. The [Trustees] to give notice of these orders to the First [Respondent] by taking the steps outlined in [a]-[d] of order 2 as sought in the originating application dated 6 February 2020. 4. The hearing of this application is adjourned to 10:00 a.m. on 14 February 2020. (Emphasis in original.) 9 No documents were provided to or filed in this Court explaining or summarising what occurred, if anything, in the intervening period between his Honour's orders and 14 February 2020. The Trustees did, however, file the orders made by Crowe AJ on 14 February 2020. Those orders indicate that the first respondent attended the hearing on that date, the Trustees were again legally represented at the hearing, and that the affidavit of Ms Sijabat was again read. No transcript or other document detailing what was said at that hearing was provided to this Court. 10 The orders of Crowe AJ made on 14 February 2020 were as follows: 1. The Courts [sic] grants leave for the affidavit of Mr Bookseller (sworn on 07 February 2020) to be filed in Court and placed with the papers. 2. The Court orders, by consent, that the proceedings be transferred to the Federal Court of Australia pursuant to s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). 11 It is apparent from the above orders that both the Trustees and the first respondent agreed to transfer the ACTSC proceeding to this Court. The basis for their proposed order appeared to rely on s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (ACT Cross-vesting Act), which provides as follows: 6 Special federal matters - general rules (1) If - (a) a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter; and (b) the court does not make an order under subsection (3) in respect of the matter; the court shall transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2)(b). 12 As adverted to, it is unclear to what extent the parties and Crowe AJ had regard to the terms of s 6(1) of the ACT Cross-vesting Act. Nor is this the appropriate occasion for a treatise on that provision. However, a cursory glance of the legislation suggests that insufficient attention was given to the scope and operation of the relevant provisions. In that regard, the following points should be noted. 13 First, a "special federal matter" is defined in the Dictionary of the ACT Cross-vesting Act as having the same definition as that given to the phrase in s 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which provides thus: special federal matter means: (a) a matter arising under Part IV of the Competition and Consumer Act 2010 (other than under section 45D, 45DA, 45DB, 45E or 45EA); or (aa) a matter arising under the Competition Code (as defined in section 150A of the Competition and Consumer Act 2010) of the Australian Capital Territory or the Northern Territory; or (ab) a matter arising under section 60G of the Family Law Act 1975 in a court other than the Family Court of Western Australia or the Supreme Court of the Northern Territory; or (b) a matter involving the determination of questions of law on appeal from a decision of, or of questions of law referred or stated by, a tribunal or other body established by an Act or a person holding office under an Act, not being a matter for determination in an appeal or a reference or case stated to the Supreme Court of a State or Territory under a law of the Commonwealth that specifically provides for such an appeal, reference or case stated to such a court; or (c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or (e)[sic] a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903; being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction. 14 Second, as is apparent from the above definition, bankruptcy notices over real property do not, at first blush, appear to constitute a "special federal matter". 15 Third, how or why it came to be concluded before Crowe AJ that this provision was applicable to the ACTSC proceeding was not addressed in any of the documents provided to or filed in this Court. While the mandatory word "shall" in s 6(1) suggests that the ACTSC must transfer a proceeding to this Court if the relevant conditions have been satisfied, there was no information before this Court to suggest that the matter could, or should, have been viewed as a "special federal matter". To the contrary, the information that has been provided to this Court, including the "[g]rounds of application" stated in the originating application, suggest that there may have been no proper legal basis for the orders made on 14 February 2020. 16 In short summary, the basis upon which the parties submitted, and Crowe AJ ultimately accepted and ordered, that the ACTSC proceeding be transferred to this Court was and is, in all the circumstances, somewhat dubious and questionable. It does, however, perhaps provide some explanation as to why the parties now seek for this proceeding to be transferred from this Court to the Circuit Court.
Federal Court proceeding 17 The proceeding was assigned a Federal Court file number on 3 July 2020 and allocated to the docket of Griffiths J on 9 July 2020. During the course of those formalities, his Honour was informed by this Court's Registry that the Affected Property was also the subject of the Circuit Court proceeding, which had now been set down for hearing on 31 July 2020. 18 On 14 July 2020, the parties were informed by this Court that the matter had been listed for a first case management hearing before Griffiths J on 18 August 2020. In that same email, the Court "enquire[d] whether either party intends to apply for the proceeding in this Court to be transferred to the Federal Circuit [Court] under rule 27.11 of the Federal Court Rules 2011 (Cth)", requested that the parties "respond to this query by no later than close of business on 21 July 2020", and noted that no address for service had been filed by the first respondent. 19 On 4 August 2020, the Court sent the following email to the parties: Dear [solicitor for the Trustees] I refer to the above matter and the first case management hearing listed before Justice Griffiths at 9.30am AEST on Tuesday 18 August 2020. Justice Griffiths requests the parties to discuss proposed short minutes of order in advance, with a view to reaching consent if possible. If agreed consent orders are provided by no later than close of business on Friday 14 August 2020, those orders may be made in Chambers. If consent cannot be reached his Honour requests each party provide written submissions of no more than 2 pages explaining the orders they seek and why, with proposed short minutes of order annexed, by no later than close of business on Friday 14 August 2020. The making of orders will then be determined on the papers in Chambers and without an oral case management hearing, unless one of the parties can demonstrate that a case management hearing by telephone or Microsoft Teams is necessary. In [addition], the Court notes that it appears that no [response] has been received from the parties to the Court's query in the third [paragraph] of the email below dated 14 July 2020. The parties are requested to provide an immediate response to that query, noting that two weeks has passed since the date sought for a response. As it appears that no notice of address for service has yet been filed by the [respondents], please ensure that a copy of this correspondence is promptly provided to them. (Emphasis in original.) 20 It is apparent from the above correspondence that the Trustees had provided no reply to the Court's earlier email on 14 July 2020. It appears, however, that this additional correspondence spurred the Trustees' into action, as they informed the Court on 5 August 2020 that they intended to apply for the proceeding to be transferred to the Circuit Court pursuant to r 27.11 of the FCA Rules, and that the hearing date in the Circuit Court proceeding had since been vacated. While the Trustees also indicated that they would be providing a "substantive response to his Honour's further requests shortly", no such response was ever sent to the Court. The Court accordingly informed the Trustees on 18 August 2020 that the listing had been vacated, and that the parties would be notified of the details for the relisted first case management hearing in due course. 21 The matter was subsequently allocated to my docket. I instructed the Registry to advise the parties that the matter had been listed for a first case management hearing on 6 October 2020. Although no email was sent to chambers in reply to that email, a solicitor for the Trustees appeared at that case management hearing. In brief terms, the solicitor advised the Court that: the Trustees had been appointed to manage the first respondent's bankrupt estate on 30 September 2016; a dispute had arisen regarding the capacity in which the first respondent purchased the Affected Property; a proceeding had been commenced in the Circuit Court in November 2019; in the Circuit Court proceeding, the Trustees were seeking a declaration that they were the "owner" of the property; the first respondent subsequently filed an application with Access Canberra in the ACTSC which resulted in a lapsing notice being issued to the Trustees with respect to the Trustees' caveat over the Affected Property; that proceeding was allocated to, and heard by, Crowe AJ; and that, at the hearing before his Honour, the parties consented to, and his Honour made orders giving effect to, the matter being transferred to this Court. 22 The solicitor for the Trustees did explain, in this context, that the ACT Cross-vesting Act does not allow for ACTSC proceedings to be transferred directly to the Circuit Court. Why the legislature saw fit for such an outcome to require two transfer applications - one from the ACTSC to this Court, and then a second from this Court to the Circuit Court - is, on one view, somewhat puzzling, and certainly inefficient. The solicitor did not, however, explain why the matter was a "special federal matter" such that Crowe AJ had power under s 6(1) of the ACT Cross-vesting Act to transfer the ACTSC proceeding to this Court. 23 Notwithstanding, the solicitor for the Trustees informed the Court that both parties consented to having the matter transferred to, and "amalgamated" with, the Circuit Court proceeding. It was on that basis that the Trustees sought that the matter be adjourned to 4 November 2020, at which time the parties would bring an application for the matter to be transferred. I agreed to make orders to that effect. 24 Perhaps not unsurprisingly, no further or additional correspondence was received from either party before the case management hearing listed on 4 November 2020. Like the first hearing in this Court, only the Trustees made an appearance. 25 On this occasion, the solicitor for the Trustees advised that they had not received any response from the first respondent regarding the provision of consent orders seeking to transfer the proceeding from this Court to the Circuit Court. The Trustees described the first respondent as "ha[ving] been difficult to contact from time to time". I advised the Trustees to convey to the first respondent that if he did not make an appearance at the next listing, or did not cooperate in respect of proposed orders before that listing, the Court may make orders in his absence as to the further progress of the matter. In those circumstances, I made orders listing the matter for a further case management hearing on 16 December 2020. 26 On 19 November 2020, the Trustees informed the Court that the parties had agreed to transfer the proceeding to the Circuit Court, and provided proposed short minutes of order by consent to that effect. As indicated, I agreed to make those orders in chambers on 23 November 2020.
PRINCIPLES RELEVANT TO THE QUESTION OF TRANSFER 27 Section 32AB of the FCA Act provides that the Court may transfer a proceeding to the Circuit Court. That section is in the following terms: 32AB Discretionary transfer of civil proceedings to the Federal Circuit Court (1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court. (2) The Court may transfer a proceeding under subsection (1): (a) on the application of a party to the proceeding; or (b) on its own initiative. (3) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Circuit Court under subsection (1). (4) In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1). (5) Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit Court. (6) In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to: (a) any Rules of Court made for the purposes of subsection (4); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and (c) whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. (7) If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court. (8) An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1). (8A) The Federal Circuit Court has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the court under this section; and (b) is a matter in which the court does not have jurisdiction apart from this subsection. To avoid doubt, the court's jurisdiction under this subsection is not subject to limits set by another provision. (9) The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA. (9A) This section does not apply to criminal proceedings. (10) This section does not apply to proceedings of a kind specified in the regulations. 28 The rules to which ss 32AB(3) and (4) refer are to be found in Div 27.2 of the FC Rules. Rules 27.11 and 27.12 provide as follows: 27.11 Transfer to Federal Circuit Court of Australia A party may apply to the Court to transfer to the Federal Circuit Court of Australia: (a) a proceeding other than an appeal; or (b) an appeal under the AAT Act. 27.12 Factors to be taken into account (1) For an appeal under the AAT Act, the parties must address the matters mentioned in section 44AA(7) of that Act. (2) For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act. (3) For an appeal under the AAT Act or a proceeding, the parties should address the following: (a) whether the appeal or proceeding is likely to involve questions of general importance; (b) whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred; (c) whether an appeal or proceeding would be determined more quickly if transferred; (d) the wishes of the parties. 29 Accordingly, in determining whether or not the Court should transfer a proceeding to the Circuit Court, regard must be had to the matters in s 32AB(6) of the FCA Act and r 27.12(3) of the FC Rules.
CONSIDERATION 30 There are good and compelling reasons for ordering that the present proceeding be transferred to the Circuit Court. These reasons are readily discernible when each of the above matters is considered seriatim. The following is an adaptation of the extensive analysis given to these considerations in Sampson as the trustee of the Bankrupt Estate of Wei Chen v Huang [2020] FCA 545.
Whether the proceeding is likely to involve questions of general importance 31 The questions raised in this proceeding are undoubtedly important to the parties. They are not, however, of such general importance that this Court, rather than the Circuit Court, should be required to determine them. Questions may be of general importance if they raise novel or controversial issues: Currie v Joffe [2020] FCA 68 at [12]. Questions that, by contrast, concern questions of fact and the application of law to those facts, and do not involve a point of principle, are unlikely to be of general importance. 32 The questions raised in this proceeding are, in all the circumstances, ones that can be appropriately determined by the Circuit Court.
Whether it is less expensive and more convenient to transfer the proceeding 33 In the absence of any evidence or submissions from the parties, I gratefully adopt Kenny J's observation that "the fees likely to be incurred in connection with a proceeding in the Federal Circuit Court as compared with this Court pursuant to schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth)" are undoubtedly less and support the conclusion that the Circuit Court "is the natural, generally more convenient, and less expensive forum": Currie at [14]. There is certainly no evidence before me to suggest that the proceeding being heard in the Circuit Court would be more expensive than having the proceeding continue in this Court.
Whether the proceeding would be determined more quickly if transferred 34 Neither party addressed whether the proceeding would be more likely to be heard and determined earlier in the Circuit Court. Without submissions or evidence from the parties, it is difficult to conclude whether the proceeding is likely to be heard and determined earlier in the Circuit Court compared to if the matter simply remained in my docket. 35 There are, however, two conclusions that are reasonably open. First, it is unlikely that the proceeding would be heard significantly later in the Circuit Court as compared to this Court: Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [4]; Beetham v Cortra Pty Ltd [2003] FCA 150 at [2]. Second, there is no suggestion of a possible delay to resolving the issues in dispute if the proceeding is transferred. It should be noted, in this regard, that no directions or timetabling orders have been made in this Court. It therefore cannot be said that this Court has had any real or meaningful involvement in the management of the proceeding to date that might otherwise warrant against a transfer of the proceeding. The Circuit Court, in these circumstances, would be able to give directions freely from the outset as to how best progress the matter: Stevens v Barrett Property Sales & Administration Pty Ltd [2019] FCA 740 at [8].
The wishes of the parties 36 The Trustees and the first respondent have agreed to transfer the proceeding to the Circuit Court. It has long been held that consent in these circumstances is "decisive": Rixon at [4]; Denison v Boart Longyear Pty Ltd [2011] FCA 881 at [11]. This consideration is one that I have afforded significant weight.
Whether proceedings in respect of an associated matter are pending in the Circuit Court 37 There is, importantly for present purposes, an associated matter currently pending before the Circuit Court. That associated matter, which concerns the question of ownership of the Affected Property, strongly suggests that this matter should be transferred to the Circuit Court to be heard together with that proceeding.
Whether the resources of the Circuit Court are sufficient to hear and determine the proceeding 38 There is no question, notwithstanding the absence of submissions on this issue, that the resources of the Circuit Court are sufficient to hear and determine this proceeding.
The interests of the administration of justice 39 There are three relevant matters as regards to whether transferring a proceeding to the Circuit Court is in the interests of the administration of justice. 40 First, this Court must have regard to s 37M of the FCA Act, which establishes that the overarching purpose of the civil practice and procedure provisions of this Court, including its rules, is to facilitate the just resolution of disputes in a manner that is quick, inexpensive, and efficient. Section 37M is in the following terms: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. 41 When consideration is given to the factors listed in s 37M(2), it is clear that a transfer of this proceeding to the Circuit Court would constitute an efficient, timely, and just disposal of the proceeding. 42 Second, this Court should have regard to whether the parties would be limited as to the nature or scope of possible relief in the Circuit Court as compared to this Court. There is no basis for concluding that, in this proceeding, the parties could not seek, and subsequently be granted, proper relief in the Circuit Court. 43 Third and finally, consideration should be given to the rationale for the establishment of the Circuit Court, helpfully summarised by White J in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102. His Honour declared, in the context of whether proceedings should be transferred from this Court to the Circuit Court, that the creation of the Circuit Court was based on the principle that smaller matters would be allocated to a lower competent authority: Ecosway at [37]. This proceeding is a perfect illustration of such a matter. 44 Transferring proceedings to the Circuit Court should not, however, convey the impression that the Circuit Court only deals with matters of lesser significance. To do so would be to misunderstand the nature of the Circuit Court. Rather, transfers of proceedings are simply a reflection of "the concept of more efficient and better administration of justice which underlies the creation of that court and underlies the arrangements for transfer of cases between the two courts": Sheikholeslami v University of New South Wales [2006] FCA 712 at [8]-[9].
CONCLUSION 45 For the reasons stated above, it is appropriate, in all the circumstances, that the proceeding be transferred to and be heard in the Circuit Court. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.
Sijabat as trustee of the Bankrupt Estate of Do
Do