Teserioro v Matstar Pty Ltd & Anor

complex, undertook responsibility to the Australian Government for the construction of the apartment complex. The respondent sub-contracted to the applicant the supply and installation of certain services such as fire protection, airconditioning, water treatment and distribution and communication services ("the subcontract"). The principal claim made in these proceedings is that the applicant was induced to enter into the subcontract by misleading and deceptive conduct on the part of the respondent. Such conduct is pleaded as representations and warranties made by the respondent as to the period of time within which the apartment complex would be completed. Claims in negligence relating to construction work and the security of the construction site are also made in these proceedings as is a relatively small claim pursuant to the subcontract. In the proceedings commenced in the Supreme Court of Western Australia the plaintiff (the respondent to the proceedings in this Court) claims against the defendant (the applicant in this Court) for breaches of the subcontract. The breaches alleged include a failure to complete the subcontract work by the date provided for practical completion of the project and failure to carry out the subcontract work in a proper and "workmanlike" manner. Section 5(4) of the Jurisdiction of Courts Act is in the following terms:-

"Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Federal Court or the Family Court (in this subsection referred to as the "first court"); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by the Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of a State or Territory; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court." The respondent places reliance on s5(4)(b)(i). Plainly these proceedings are related to the proceedings between the same parties which have been instituted in the Supreme Court of Western Australia. The crucial issue is whether it is more appropriate that these proceedings be determined by the Supreme Court of Western Australia than by this Court. It is contended on behalf of the respondent that the applicant's claims under s52 of the Trade Practices Act are ill-founded and made purely for the purpose of invoking the jurisdiction of this Court. The only pleadings filed to date are the application and statement of claim. I am not prepared at this early stage to act on any basis other than that the claims pursuant to the Trade Practices Act are a bona fide invocation of the jurisdiction of this Court. The applicant places heavy reliance on the fact that it commenced its proceedings in this Court before the respondent commenced its proceedings in the Supreme Court of Western Australia. In Teserioro v Matstar Pty Ltd & Anor (1990) 93 ALR 607 Spender J stated at 608 as follows:- "... the position so far as the Federal Court in Queensland is concerned in the future will be that, in the absence of special circumstances, the litigation should be pursued in the court in which it was first commenced." His Honour had earlier pointed out that as the Federal Court no longer has exclusive jurisdiction under Part V of the Trade Practices Act it cannot be regarded as being necessarily the appropriate court to hear and determine matters under s52 of that Act. Ipp J in Central Bore Nickel NL v Richfile Pty Ltd & Ors (unreported, Supreme Court of Western Australia, 22 August 1995) has also taken the view that it is undesirable that litigation should be commenced in one court when there is existing litigation in another court involving the same parties and substantially the same issues. His Honour there stated at page 7:- "In my view the commencement of the action in Western Australia after a like action had commenced in New South Wales is precisely what the Act seeks to avoid. It is plainly highly undesirable for two actions so related to each other as the two in which CBN and Richfile are presently involved to run concurrently in two different States. Apart from the potential for conflict between courts, the existence of parallel proceedings results in the unnecessary use of the judicial services of at least one court and in the incurring of unnecessary legal costs. One of the main points of the Act is to avoid the need for this occurring." With respect I agree with everything said by his Honour in the above passage. The circumstances here, however, are not identical with those that confronted Ipp J in the Central Bore Nickel Case. First, as the applicant has been at pains to stress, the two sets of proceedings although related, do not involve substantially the same issues. The proceedings in this Court are based on allegations of misleading and deceptive conduct leading up to the entering into of the subcontract: the Western Australian proceedings allege breaches of the subcontract.