C A T C H W O R D S
PRACTICE AND PROCEDURE - Application for summary dismissal of proceeding - Proceeding is a representative action on behalf of graziers and others who suffered loss as a result of contamination of cattle by chlorfluazuron contained in an insecticide used on cotton - Cattle allegedly ingested chlorfluazuron when fed cotton waste or by grazing over-sprayed pastures or drinking contaminated water - Action against manufacturers and distributors of insecticide - Joinder of Commonwealth and State authorities concerned with the approval and registration of the chemical product - Application for dismissal of proceeding by reason of terms of Commonwealth statute providing that "no action lies" against various persons in connection with loss sustained by reason of "use" of registered product - Effect of repeal of this provision and substitution of another provision in similar terms - Application for dismissal granted in respect of Commonwealth and Commonwealth instrumentality - Provision did not grant immunity to States - Whether claims against States are within jurisdiction of Court - Availability in representative proceedings of jurisdiction conferred by cross-vesting legislation.
Trade Practices Act 1974, s.52
Fair Trading Act 1987 (NSW), ss.3 and 42
Fair Trading Act 1989 (Qld), ss.38 and 99
Federal Court of Australia Act 1976, ss.32, 33C and 33G
Jurisdiction of Courts (Cross-vesting) Act 1977, s.9
Jurisdiction of Courts (Cross-vesting) Act 1977 (NSW and Qld), ss.3 and 4
Federal Court Rules, Order 11 rule 16, Order 20 rule 2(1)
BRIAN McMULLIN and LEONE MARGARET McMULLIN
v. ICI AUSTRALIA OPERATIONS PTY LTD, ICI AUSTRALIA LTD,
CROP CARE AUSTRALASIA PTY LTD, THE COMMONWEALTH OF AUSTRALIA, NATIONAL REGISTRATION AUTHORITY, THE STATE OF NEW SOUTH WALES
and THE STATE OF QUEENSLAND
No. NG.305 of 1995
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 29 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG.305 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: BRIAN McMULLIN and LEONE MARGARET McMULLIN
Applicants
AND: ICI AUSTRALIA OPERATIONS PTY LTD
First Respondent
ICI AUSTRALIA LTD
Second Respondent
CROP CARE AUSTRALASIA PTY LTD
Third Respondent
THE COMMONWEALTH OF AUSTRALIA
Fourth Respondent
NATIONAL REGISTRATION AUTHORITY
Fifth Respondent
THE STATE OF NEW SOUTH WALES
Sixth Respondent
and
THE STATE OF QUEENSLAND
Seventh Respondent
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 29 MAY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. Insofar as it relates to the claims made against the fourth respondent, the Commonwealth of Australia, and the fifth respondent, the National Registration Authority for Agricultural and Veterinary Chemicals, the proceeding be dismissed.
2. The applicants pay to the fourth and fifth respondents the costs incurred by them in connection with the said proceeding, including the motions for summary dismissal, such costs being taxed on the basis of both respondents being represented by a single firm of solicitors and single set of counsel.
3. The motions of the sixth respondent, the State of New South Wales, and the seventh respondent, the State of Queensland, be dismissed.
4. The costs of the motions of the sixth and seventh respondents be applicants' costs in the proceeding against each of those respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG.305 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: BRIAN McMULLIN and LEONE MARGARET McMULLIN
Applicants
AND: ICI AUSTRALIA OPERATIONS PTY LTD
First Respondent
ICI AUSTRALIA LTD
Second Respondent
CROP CARE AUSTRALASIA PTY LTD
Third Respondent
THE COMMONWEALTH OF AUSTRALIA
Fourth Respondent
NATIONAL REGISTRATION AUTHORITY
Fifth Respondent
THE STATE OF NEW SOUTH WALES
Sixth Respondent
and
THE STATE OF QUEENSLAND
Seventh Respondent
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 29 MAY 1996
REASONS FOR JUDGMENT
WILCOX J: On 3 May 1995, the applicants, Brian McMullin and Leone Margaret McMullin, commenced this action by filing in the Court an Application and Statement of Claim. They named three respondents, ICI Australia Operations Proprietary Limited, ICI Australia Ltd and Crop Care Australasia Pty Ltd. The action was brought as a representative action pursuant to Part IVA of the Federal Court of Australia Act 1976. It arose out of losses allegedly suffered by the applicants and the group members described in the Application as a result of the accumulation of chlorfluazuron in the tissues of cattle. The contamination was said to have occurred when the cattle were fed cotton waste that had been sprayed with an insecticide marketed under the name "Helix". The Statement of Claim alleged that this product contained chlorfluazuron and that it was manufactured and/or distributed by one or more of the respondents. Facts were alleged which, it was said, made one or more of the respondents liable for the losses suffered by the applicants and group members.
On 28
August 1995, the applicants filed an Amended Statement of Claim. The three original respondents were retained
as respondents, with some changes in the allegations made against them. Additionally, four new respondents were
added: the Commonwealth of Australia
(fourth respondent),
National Registration Authority for Agriculture and Veterinary Chemicals
("NRA", fifth respondent), the State of New South Wales (sixth
respondent) and the State of Queensland (seventh respondent).
After service of the Amended Statement of Claim, each of the four new respondents filed a Notice of Motion by which it sought summarily to dispose of the claim against it, in whole or in part.
The fourth and fifth respondents each sought an order that the proceeding against it be struck out, pursuant to Order 11 rule 16 of the Court's rules, or stayed or dismissed generally pursuant to Order 20 rule 2(1); alternatively, an order for a trial as preliminary issues of certain questions raised by them in relation to the application of two Commonwealth statutes: the Agricultural and Veterinary Chemicals Act 1988 ("the 1988 Act") and the Agricultural and Veterinary Chemicals (Administration) Act 1992 ("the Administration Act"). The sixth respondent sought an order staying or dismissing the whole proceeding as against it; alternatively, an order striking out certain paragraphs in the Amended Statement of Claim. The seventh respondent sought only the striking out of certain paragraphs in the Amended Statement of Claim.
All the motions were heard on 10 November 1995. As opt out notices had not then been given, I indicated I would not make any orders in relation to the Notices of Motion until after the expiration of the opt out period: see s.33J of the Federal Court of Australia Act. I had in mind that group members who chose to opt out should not be affected, one way or the other, by whatever orders were made in response to the Notices of Motion. Some group members subsequently filed opt out notices. They will not be bound by the orders I will make in connection with these motions: see s.33ZB of the Act.
Towards the end of the opt out period, I began to prepare reasons for judgment in relation to the motions. In preparing reasons, I discovered that a provision (s.45 of the 1988 Act) that had been at the heart of the arguments put to the Court on behalf of the fourth and fifth respondents had been repealed in 1994, before the proceeding was commenced. At the hearing of the motions, nobody had mentioned the repeal. Apparently this was because of an understanding between counsel as to the extent of the issues between them. But the result had been to leave me with the belief that the section still operated when the proceeding was commenced.
When I discovered the repeal of s.45, I thought it desirable to invite further submissions. They were provided in writing. The main focus of the supplementary submissions was the effect of s.8(c) of the Acts Interpretation Act 1901.
In the meantime, on 14 March 1996, the applicants filed a Further Amended Statement of Claim. This was done primarily in order to repair some deficiencies and ambiguities in the Amended Statement of Claim that had come to notice during the hearing on 10 November. The further amendment did not introduce any new claim. Having regard to that fact, although the arguments were, of course, addressed to the amended Statement of Claim, it is preferable for me to analyse them by reference to the latest pleading.
Strike-out principles
Order 11 rule 16 provides:
"16.Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out."
Order 20 rule 2(1) provides:
"2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding."
As will be apparent, the two provisions overlap. Where a Statement of Claim fails to disclose a reasonable cause of action, both apply. Both apply where the proceeding is an abuse of process. In the present case it is not suggested that the proceeding constitutes an abuse of process, as against any respondent. Nor is it suggested that the Amended Statement of Claim has a tendency to cause prejudice, embarrassment or delay (para. (b) of Order 11 rule 16) or that the proceeding is frivolous or vexatious (para. (b) of Order 20 rule 2). The claim made by the fourth, fifth and sixth respondents is that the claim against each of them must fail, for legal reasons; and accordingly the Amended Statement of Claim fails to disclose a reasonable cause of action.
Although it may seem strange to brand a pleading that sets out all the requisite elements of a cause of action, but to which there is a demonstrable answer, as one failing to disclose a reasonable cause of action, this has been done in previous cases. By way of example, in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ struck out, as not disclosing a reasonable cause of action, a Statement of Claim alleging infringement of a patent by three defendants including the Commissioner for Railways. The Commissioner claimed the protection of ss.125 and 132 of the Patents Act 1952as "an authority of the State". Although the Statement of Claim was apparently in the conventional form, and alleged all the ingredients necessary in a patent infringement case, Barwick CJ held at 137 that it did not disclose a reasonable cause of action because it sought "to restrain an infringement of the plaintiff's letters patent in stated circumstances which preclude the plaintiff having such a cause of action against any of the defendants". Accordingly, he struck out the whole Statement of Claim.
In that case the questions that fell for determination were whether ss.125 and 132 of the Patents Act applied to the Commissioner and, if so, whether that protection extended to the other two defendants by virtue of their contract with the Commissioner. These were wholly questions of law. There was no issue of fact to be determined. The Court was in as good a position to determine those questions immediately as it would be at trial. Despite this, Barwick CJ emphasised the restraint that should be exercised by a court asked summarily to terminate an action. He said at 129 that the decided cases:
"uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated."
After referring to various expressions of the relevant test, he quoted something said by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
Barwick CJ agreed at 130 that a defendant "should be saved from the vexation of the continuance of useless and futile proceedings" but added:
"great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
The principles enunciated in General Steel have been applied in numerous cases: see Church of Scientology v Woodward (1982) 154 CLR 25 per Wilson J at 31 and Webster v Lampard (1993) 177 CLR 598 at 602-603 (Mason CJ, Deane J and Dawson J) and 619 (Toohey J). I must apply them in relation to the present applications. If any respondent demonstrates that the claim made against it is clearly untenable, for a reason that does not depend upon a disputed question of fact, I must hold that the Further Amended Statement of Claim fails to disclose a reasonable cause of action against that respondent and strike out or stay the proceeding against it. Otherwise, the claim should be allowed to go to trial.
The applicants' case
To a large extent, the applications made by the respondents are based on the 1988 Act. During its short life, this Act was amended on a number of occasions. In considering its application to this case, it is necessary to bear in mind the date of the events alleged by the applicants and the nature of the breaches of duty they impute to the various respondents.
Paragraph 3 of the Further Amended Statement of Claim fixes the date of the manufacture and distribution of "Helix" as between 1989 and 1994. Paragraph 4 alleges that it contained chlorfluazuron. Paragraph 7 alleges that "Helix" was provided by the first, second and third respondents specifically for controlling certain insects in cotton crops and was designed for aerial spraying. Paragraph 8 refers to the application of "Helix" to cotton crops "by aerial spraying from 1989 to 1994 throughout New South Wales and Queensland". It is said that the spraying caused chlorfluazuron to be applied to cotton crops and pasture, stock routes and waterways. Paragraph 11 alleges that owners of cattle fed cotton trash and by-products to their cattle and permitted them to graze on affected areas and to water from affected waterways.
The legal basis of the applicants' claim varies as between respondents. As against the fourth, sixth and seventh respondents (the Commonwealth and the two States), the applicants claim in paras. 29 and 30 of the amended Statement of Claim that until 30 June 1989 there was a non-statutory committee called Technical Committee on Agricultural Chemicals ("TCAC") on which each of them was represented and that TCAC directed a sub-committee, the Pesticides and Agricultural Chemical Committee, whose function it was to consider and advise upon the use of pesticides and agricultural chemicals where residues in food for human consumption or animal feed could occur. They further claim that TCAC had the functions of considering all proposals for the use, and the possible hazards, of new pesticides and agricultural chemicals in Australia, evaluating the implications of their use and making recommendations to State governments in respect of registration of products. They say in para.31 that each member of TCAC at material times acted in the course of his or her employment and, in para.32, that the members of TCAC, and thereby the three governments, knew or ought to have known of certain deleterious effects of chlorfluazuron. Paragraph 33 alleges that TCAC granted certificates of clearance in respect of "Helix" in January and May 1989. Paragraph 34 states that, in doing so, TCAC omitted to do various things with consequences stated in paras. 35 and 36. In para.38 the applicants claim that "TCAC and each of its members and thereby the Fourth, First (sic; sc Sixth) and Seventh Respondents engaged in conduct that was misleading and deceptive or was likely to mislead or deceive" contrary to s.52 of the Trade Practices Act 1974, s.42 of the Fair Trading Act 1987 (NSW) and s.38 of the Fair Trading Act 1989 (Qld). In paras. 40-43 the omissions are alleged to constitute common law negligence (paras. 40-43).
Paragraphs 44 to 58 relate to the period 1 July 1989 to 15 June 1993. Between those dates there existed a body known as the Australian Agricultural Veterinary Chemicals Council ("the Council"). In relation to that period, similar allegations are made, but arising out of the governments' representation on the Council rather than TCAC. Paragraph 48 alleges that, on 10 September 1992 and 27 April 1993, the Council granted extensions to the certificate of clearance in respect of "Helix".
The fifth respondent (NRA) came into existence on 15 June 1993. Paragraphs 59 to 70 deal with the period since that day. In relation to that period, similar claims are made against NRA, but not against the three governments. It is claimed (para.61) that, on 9 July 1994, NRA granted an extension of the certificate of clearance until July 1995.
Paragraphs 71 to 96 are directed against the State of New South Wales. They depend partly upon the existence between 1989 and 1994 of a functionary called Registrar of Chemicals whose duty it was to evaluate and decide whether to register agricultural chemicals for sale and use in New South Wales. They also allege the existence of a Department of Agriculture, one of whose functions was to provide advice to owners concerning the management and maintenance of livestock and to growers of crops concerning control of insects and other pests. Paragraph 75 alleges that the Registrar of Chemicals and the Department of Agriculture knew or ought to have known certain things about chlorfluazuron. Nonetheless, it is said, the Registrar registered "Helix" in the years 1989 to 1994 (para.76). Breaches of the New South Wales Fair Trading Act (but not, at this point, the Trade Practices Act) and common law negligence are alleged.
Paragraphs 97 to 109 deal with the Queensland situation, allegations similar to the New South Wales allegations being made in respect of the Standards Officer acting pursuant to the Agricultural Standards Act 1952 (Qld) and the Department of Primary Industries. Reference is made to the Queensland Fair Trading Act: but not, at this point, the Trade Practices Act.
The registration evidence
The fourth respondent adduced evidence concerning the registration of "Helix". It was contained in an affidavit sworn by Jane Robyn Buckley, a solicitor employed by the Australian Government Solicitor, and not challenged.
It appears from that affidavit that a product called "ICI Crop Care Helix 40 ULV Insecticide" was registered on 20 February 1989 by the Pesticide Registration Section of the New South Wales Department of Agriculture and on 22 March 1989 by the Standards Branch of the Queensland Department of Primary Industries. I understand the product described in these certificates to be identical to the product referred to in the Further Amended Statement of Claim which I have called "Helix". On 16 May 1989, an officer of the Agricultural and Veterinary Chemicals Section of the Commonwealth Department of Primary Industries and Energy issued a clearance document in respect of Helix 40 ULV Insecticide. The certificate referred to an appraisal by TCAC. It set out details of the product. Its field of use was described as "cotton" and, in particular, control of native bullworm and cotton bullworm. The certificate specified directions for use including in relation to labelling.
Ms Buckley's affidavit also shows that, on 17 March 1993, the Council issued a certificate of clearance of a product described as "Helix Insecticide" in 200 litre and 1,000 litre pack sizes. As I understand the position, this certificate related to the same product as the 1989 certificate.
The Commonwealth legislation
As will be apparent, the applicants' case is that breaches of duty occurred throughout the whole period 1989 to 1994. So it is necessary to note the mutations of the relevant statutes during this period.
The 1988 Act came into operation on 1 July 1989. It was expressed to bind the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island (s.6). Section 8 of the Act established the Australian Agricultural and Veterinary Chemicals Council. The composition of the Council was dealt with by s.23. There was to be a Chairperson, a member to represent each scheme participant (that is, participating State or Territory: see s.4(3)), and three other members, each representing another body (s.23(1)). Members were to hold office part-time for a maximum of three years and to be appointed by the Minister. Members representing a particular participant were to be nominated by the relevant Minister of that State or Territory. The functions of the Council were set out in s.9:
"(a) to grant or withdraw clearances for the registration of chemical products for use in States and Territories for specified purposes under specified conditions;
(b) to determine the conditions to which such clearances are subject or to vary such conditions;
(c) to obtain advice from other bodies concerning the granting or withdrawing of such clearances or the determination or variation of such conditions;
(d) to evaluate the effects of the use of chemical products in States and Territories;
(e) to develop, in consultation with the National Health and Medical Research Council and the National Occupational Health and Safety Commission, codes of practice, standards and guidelines for, and to recommend precautions to be taken in, the use of chemical products in States and Territories."
The substance of the Act was contained in Part III (ss.12-22). At that time, as I understand the position, each State and Territory required distributors to register chemical products intended for use within its territory. A person who wished to engage in nationwide distribution had to make seven applications and comply with varying, possibly conflicting, requirements. Each State and Territory carried out its own investigation. This involved duplication of work by both applicants and government officers. The non-statutory procedures undertaken by TCAC were intended to reduce duplication and conflict but they were apparently considered inadequate. The 1988 Act was not designed to obviate separate registration; that system continues to this day. But it was, apparently, intended to improve co-ordination of the application and investigation process; in considering applications, the States and Territories could rely on a "clearance for registration" of the product issued by the Council. Consistently with this scheme, s.12 provided for the making of applications for a clearance for registration of a chemical product and dealt with the information that Council might require. Section 14 permitted Council to require the provision of further information or samples and s.15(1) set out Council's duty:
"15(1) Where a person applies to the Council under section 12 for a clearance of a particular chemical product:
(a) if the Council is satisfied:
(i) that an application made to it in respect of that chemical product contains the information required under subsection 12(2);
(ii) that the information so contained is correct in all material particulars; and
(iii) that, having regard to that information and to any inquiries conducted by the Council, and subject to compliance by all affected parties with such conditions as the Council thinks appropriate to apply under subsection (3), the chemical product:
(A) would be effective if applied, in the States and Territories specified in the application, for its represented uses;
(B) would not unduly prejudice trade between Australia and any place or places outside Australia if applied, in the States and Territories specified in the application, for its represented uses;
(C) would not constitute an undue hazard to the safety of persons exposed to it during its manufacture, handling, transportation, storage, use or disposal or consuming or otherwise using products containing its residues; and
(D) would not be likely to have a serious unintended effect on animals, plants or things;
the Council shall, by notice in writing given to the applicant, grant the application; or
(b) if the Council is not so satisfied, the Council shall, by notice in writing given to the applicant, refuse the application."
It is not necessary to refer to the other provisions of Part III. It is enough to say that they armed the Council with powers to obtain all the information it might reasonably require in order to determine whether or not the chemical product would meet the standards specified in s.15(a)(iii).
Part V of the Act contained miscellaneous provisions. They included s.45:
"45(1) No action of (sic; sc. 'or') proceeding lies against the Commonwealth, a member of the Council or a person assisting the Council in the performance of its functions for any loss or injury directly or indirectly sustained.
(a) by reason of the use of a chemical product in respect of which a clearance has been granted by the Council; or
(b) by reason of an inability to use, or to use in a particular manner, a chemical product in respect of which a clearance, or a clearance permitting its use in that particular manner, has been refused by the Council.
(2) Where an action is instituted against a person responsible for the manufacture, distribution or sale of a chemical product in respect of which a clearance has been granted by the Council in relation to an injury directly or indirectly sustained by reason of the use of that chemical product, it shall not be a defence to that action that the chemical product has been so cleared."
Section 46(1) applied to substances authorised for use, subject to particular conditions, in a State or Territory immediately before the State or Territory became a scheme participant. It provided:
"46(1) Where any substance or mixture of substances that would be a chemical product for the purposes of this Act was authorised for use, subject to particular conditions, in a particular State or Territory that became a scheme participant, for the purposes of this Act immediately before the day that State or Territory became a scheme participant, this Act shall have effect, with effect from and including that day, as if there were in existence a certificate of clearance issued under this Act and having effect from that day permitting use of that substance or mixture of substances in that State or Territory subject to compliance with those conditions."
According to the evidence of Ms Buckley, New South Wales and Queensland both became scheme participants as from the date of the Act's commencement, as did the other States and the Northern Territory.
Finally, the Act contained a "sunset clause":
"48(1) This Act, unless sooner repealed, shall cease to be in force at the expiration of a period of 5 years after:
(a) if the day fixed by Proclamation for the purposes of section 2 is a 1 July - the day so fixed; or
(b) if the day so fixed is not a 1 July - the 1 July next following the day so fixed.
(2) For the purposes of section 8 of the Acts Interpretation Act 1901, when this Act ceases to be in force by virtue of subsection (1) of this section, it shall be deemed to have been repealed by an Act other than this Act."
As the day fixed by Proclamation under s.2 as the date of commencement was 1 July 1989, the effect of this provision was that the Act was to cease to be in force after 30 June 1994.
In 1992 Parliament passed two complementary Acts: the Agricultural and Veterinary Chemicals (Administration) Act 1992 ("the Administration Act"), which established NRA, the present fourth respondent, and the Agricultural and Veterinary Chemicals Amendment Act 1992 ("the Amendment Act") which made consequential amendments to the 1988 Act. In particular, the Amendment Act abolished the Council.
The NRA, unlike the old Council, was constituted as a body corporate (s.12 of the Administration Act). It consisted of a Chairperson and seven other directors appointed by the Minister. The directors, unlike the members of the old Council, were not nominated to represent participating States or Territories or other bodies. They were people having experience in particular areas (s.14). Directors were eligible for appointment for a maximum of three years and were to act on a part-time basis (ss.17 and 18).
Section 6 of the Amendment Act amended s.9 of the 1988 Act by transferring to NRA the functions previously undertaken by the Council. Some additional functions were added but functions (a) to (e), as quoted above, were retained. Section 12 of the Amendment Act inserted into the 1988 Act a new s.45:
"45(1) No action or proceeding lies against the Commonwealth or a person to whom this section applies for any loss or injury directly or indirectly sustained:
(a) because of the use of a chemical product in respect of which a clearance has been granted by the former Council or by the NRA; or
(b) because of an inability to use, or to use in a particular manner, a chemical product in respect of which a clearance, or a clearance permitting its use in that particular manner, has been refused by the former Council or the NRA.
(2) If an action has, whether before or after the commencement of this section, been instituted against a person responsible for manufacture, distribution or sale of a chemical product in respect of which a clearance has been granted by the former Council or the NRA in relation to an injury directly or indirectly sustained because of the use of that product, it is not a defence to that action that a clearance was so granted in respect of the product.
(3) In this section:
'person to whom this section applies' means:
(a) a member of the former Council; or
(b) a member of the staff of the former Council; or
(c) a member of a committee of the former Council; or
(d) a director of the NRA; or
(e) the Chief Executive Officer of the NRA; or
(f) a member of the staff of the NRA; or
(g) a consultant to the NRA; or
(h) a member of a committee of the NRA."
Section 46 of the 1988 Act was amended by substituting "NRA" for "Council" wherever occurring.
The two 1992 Acts commenced to operate on 15 June 1993.
The legislation was further amended by the Primary Industries and Energy Legislation Amendment Act 1993. The only amendment that is presently relevant was one made by s.6 of the 1993 Act. This section omitted from subs.(1) of the version of s.45 of the 1988 Act that was inserted in 1992 the words "or a person" and substituted "the NRA or a person who is or has been". This amendment gave rise to a curious result because it made the subsection read: "No action or proceeding lies against the Commonwealth, the NRA or a person who is or has been to whom this section applies for any loss" etc. It seems that the words "a person" should not have been omitted.
In 1994
four relevant statutes were enacted: Primary
Industries and Energy Legislation Amendment Act 1994, Agricultural
and Veterinary Chemicals Act 1994,
Agricultural
and Veterinary Chemicals Code Act 1994 (the "Code Act") and Agricultural
and Veterinary Chemicals (Consequential Amendments) Act 1994 ("the
1994 Consequential Amendments Act").
The first statute relevantly commenced to operate on 30 June 1994. It extended the "sunset clause" in s.48 of the 1988 Act until 30 June
1996, thereby preventing the Act's cessation on 30 June 1994 as originally
intended. The other three statutes
commenced to operate on 16 March 1995.
Section 24 of the Agricultural and Veterinary Chemicals Act
repealed the whole of the 1988 Act. The
Code Act enacted a new regime for the evaluation, registration and control of
agricultural
and veterinary chemical products. The
1994 Consequential Amendments Act inserted into the Administration Act a new
Part 7A that included an exemption in those terms:
"69H Subject to subsection (3), no action, suit or other proceeding for damages lies against the Commonwealth, the NRA, or any other Commonwealth authority, or a person who is or has been an officer or employee of the Commonwealth, of the NRA or of any other Commonwealth authority, or is or has been a delegate of the NRA, a director of the NRA, a consultant to the NRA, an inspector, or a mediator or arbitrator appointed by the NRA under any of the Agvet Codes, for any loss or injury directly or indirectly suffered as a result of:
(a) the handling of an approved active constituent for a proposed or existing chemical product;
(b) the handling of a registered chemical product; or
(c) the handling of an active constituent for a proposed or existing chemical product, or of a chemical product, in respect of which a permit or exemption has been issued or given by the NRA; or
(d) an inability to use, or to use in a particular manner, an active constituent for a proposed or existing chemical product:
(i) because an approval, permit or exemption permitting its use, or permitting its use in that manner, has been refused by the NRA or such an approval, permit or exemption that was previously granted by the NRA has been suspended or cancelled; or
(ii)because its use, or its use in that manner, is precluded by the conditions of an approval, permit or exemption; or
(e) an inability to use, or to use in a particular manner, a chemical product:
(i) because a registration, permit or exemption permitting its use, or permitting its use in that manner, has been refused by the NRA or such a registration, permit or exemption that was previously granted by the NRA has been suspended or cancelled; or
(ii)because its use, or its use in that manner, is precluded by the conditions of a registration, permit or exemption; or
(f) the carrying out of a step in the manufacture of a chemical product in respect of which a licence has been issued by the NRA; or
(g) an inability to carry out, or to carry out in a particular manner or at particular premises, a step in the manufacture of a chemical product:
(i) because a licence to carry out that step, or to carry out that step in that manner or at those premises, has been refused by the NRA or such a licence that was previously granted by the NRA has ben suspended or cancelled; or
(ii)because the carrying out of that step, or the carrying out of that step in that manner or at those premises, is precluded by the conditions of a licence.
(2) If an action, suit or other proceeding is brought against a person responsible for the importation, manufacture, supply or handling of:
(a) an approved active constituent for a proposed or existing chemical product; or
(b) a registered chemical product; or
(c) an active constituent for a proposed or existing chemical product, or a chemical product, in respect of which the NRA has issued a permit or given an exemption; or
(d) a chemical product in respect of a step in the manufacture of which the NRA has issued a licence;
in relation to any loss or injury directly or indirectly suffered because of the importation, manufacture, supply or handling of the constituent or product, it is not a defence to that action, suit or other proceeding that the NRA had approved the constituent, registered the product, issued a permit or given an exemption in relation to the constituent or the product, or issued a licence in relation to a step in the manufacture of the product.
(3) This section does not affect section 75AL of the Trade Practices Act 1974.
(4) Expressions used in this section have the same meanings as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994."
The Commonwealth and NRA
The applications made on behalf of the fourth and fifth respondents may be considered together. Although these respondents were separately represented, their arguments are substantially identical. At the hearing of 10 November 1995, Ms A Bennett SC and Mr S Gibb, who appeared for the Commonwealth, adopted with minimal addition the argument put by Mr A Emmett QC and Mr J E Marshall on behalf of NRA. The argument relies entirely on ss.45 and 46 of the 1988 Act, as amended in 1992 and 1993. Counsel say that, to the extent that the claim relates to actions taken by TCAC before the commencement of the 1988 Act, s.46(1) of the 1988 Act applies. That subsection makes the 1988 Act (including s.45) have effect, from the day before any particular State or Territory became a scheme participant, "as if there were in existence a certificate of clearance issued under this Act". As s.45 confers an immunity in respect of the grant of a clearance (by the Council or NRA) under the 1988 Act, counsel argue, the effect of this deeming provision was to confer an immunity in relation to any approval by TCAC prior to the commencement of the 1988 Act.
In relation to the period since the commencement of the 1988 Act, counsel's argument is more simple. They say that s.45 gave total immunity from suit to the Commonwealth and NRA.
As I have mentioned, my discovery that s.45 was repealed prior to the commencement of this proceeding led to submissions concerning the application of s.8(c) of the Acts Interpretation Act. However, I have reached the view that it is not necessary to consider that paragraph in relation to the claim against the Commonwealth or NRA. This proceeding was instituted after the commencement of the 1994 Consequential Amendments Act. As recounted, that Act inserted s.69H into the Administration Act. Subject to an immaterial exception, it provided that "no action, suit or other proceeding for damages lies against the Commonwealth, (or) the NRA ... for any loss or injury directly or indirectly suffered as a result of ... the handling of a registered chemical product". The word "handling" is defined in the Schedule to the Code Act as including "transportation, storage, processing, use or disposal". The term "registered chemical product" is defined in the Schedule as "a chemical product registered under the Agvet Code of this jurisdiction". "Helix" was registered before the commencement of the Agvet Code but s.174(1) of the Code provides:
174(1) If, immediately before the commencement of the Agvet Code of this jurisdiction, a chemical product was registered by the previous registering authority of this jurisdiction and a label in relation to, or in relation to containers for, that product was also registered or approved by that authority, the following paragraphs apply:
(a) the product is taken to have been registered by the NRA under section 20 of that Code upon that commencement subject to the conditions (if any) to which its registration by that previous registering authority was subject;
(b) the person who applied for the registration of the product by the previous registering authority or, if that registration was renewed, the person who applied for the renewal or the last renewal, as the case may be, is taken to be the person who applied for the registration of the product under that Code;
(c) the label is taken to have been approved in relation to the product by the NRA under section 21 of that Code upon that commencement:
(i) for the containers for which it was registered or approved by that previous registering authority or, if it was not registered or approved for containers, for all containers for the product; and
(ii) subject to the conditions (if any) to which its registration or approval by that previous registering authority was subject."
As I understand the position, it is common ground that, immediately before the commencement of the Agvet Code in New South Wales and Queensland, "Helix" was registered in each jurisdiction and the requisite label was registered or approved. If that is so, the effect of s.174(1) is to require the product to be taken as registered by the NRA under the Agvet Code of each State. Accordingly, it is a "registered chemical product" within the meaning of s.69H. The immunity provided by that provision applied at the date of commencement of the action.
There is an issue between counsel as to the effect of an immunity such as that conferred by s.45 or s.69H. The Commonwealth and NRA argue that the effect of s.45 was to confer immunity on them in respect of any loss or injury that occurred during the life of s.45, regardless of the date of commencement of the proceeding. They say that the opening words of s.45 created more than a procedural barrier to suit, a barrier that would be effective only while the provision was in force; they prevented liability arising, even in respect of acts or omissions that would otherwise give rise to a legal liability. Counsel refer to the presumption against retrospectivity and the well-known analysis of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267-268. The applicants, on the other hand, argue that s.45 merely prohibited institution of an action; upon its repeal, the prohibition disappeared and the applicants were left free to proceed, even in relation to damage sustained during the life of s.45.
The words "no action lies" are a not uncommon statutory formula. So I have looked for authority on the issue debated by counsel. Surprisingly, I have not found any decision that assists. In that situation, if I had to determine the matter one way or the other, I would accept the applicants' construction of the provision. It seems to me that it accords better with the ordinary meaning of the relevant words. In saying that "no action ... lies", the legislature is barring the remedy, not the right. On that basis, the question would arise on the repeal of the section as to whether the barred remedy was a "right" or "privilege" acquired or accrued under the 1988 Act so as to be unaffected by the repeal of that Act: see s.8(c) of the Acts Interpretation Act and Esber v The Commonwealth of Australia
(1992) 174 CLR 430.
However, I do not think it is necessary for me to resolve the issue of construction or explore the possible application of s.8(c). Although there is room for debate upon the question whether ss.45 and 69H are provisions that prevent accrual of liability or are mere prohibitions on the institution of proceedings, there is no doubt that both sections fall within the same category. They each use the formula "no action etc lies". If the effect of this formula is to prevent liability arising during the life of the relevant provision, as the fourth and fifth respondents argue, subject to three arguments to be examined, s.45 operated to prevent the accrual of the liability alleged by the applicants. It will be remembered that the applicants allege that the damage was sustained by them between 1989 and 1994; that is, before the repeal of s.45 on 15 March 1995. On the other hand, if counsel for the applicants is correct, subject to the possible application of s.8(c) of the Acts Interpretation Act, s.45 is irrelevant. As it was repealed before the commencement of the proceeding, it did not bar its commencement. However, on this analysis, s. 69H prohibits the institution of a relevant proceeding. That section was in force at the date of institution of this proceeding and renders it incompetent.
In the course of the above discussion, I reserved three matters. The first arises out of a fact that appears now to be common ground: the earliest clearance of "Helix" by the Council, as distinct from TCAC or a State authority, was granted on 17 March 1993. If s.45 conferred an immunity, as the fourth and fifth respondents maintain, standing alone it conferred an immunity only in respect of a loss or injury sustained by reason of the use of a chemical product in respect of which a clearance was granted by the Council; it would not cover any loss or injury sustained by the use of "Helix" prior to 17 March 1993. This might be important, given that the Further Amended Statement of Claim alleges that spraying commenced in 1989. There is no suggestion of loss or injury as early as 1989, and I gather that the main losses are said to have occurred in 1984; but the Further Amended Statement of Claim does not exclude a claim for any losses that might have occurred before 17 March 1993.
However,
s.45 does not stand alone. It must be
read with s.46. According to counsel for
the Commonwealth, one effect of s.46 is to extend the immunity conferred by
s.45 to loss or injury arising out of the use of chemical products authorised
for use before the commencement of s.45.
It does this by providing that the 1988 Act, including s.45, "shall have effect" in
relation to a previously authorised substance that would be a chemical product
for the purposes of the 1988 Act, from the day a particular State or Territory
became a scheme participant, "as if
there were in existence a certificate of clearance issued under (the 1988 Act)
having effect from that day permitting use of that substance". Bearing in mind that both New South Wales and
Queensland became scheme participants on 1 July 1989, the argument, in effect,
is that a substance covered by an earlier authorisation by either of these States
is to be treated in the same way as if it were covered by a certificate of
clearance granted under the 1988 Act by the Council on 1 July 1989.
No doubt because of his view about the proper categorisation of s.45, counsel for the applicants did not challenge the Commonwealth's submission regarding s.46. However, I have considered it for myself and I think it is correct. The intent of s.46 was to deem a substance that fell within the 1988 Act's definition of "chemical product", and was previously authorised by a scheme participant, "a chemical product in respect of which a clearance has been granted by the Council". Accordingly, s.45 applied to it just as much as if it had been cleared by the Council. On the fourth and fifth respondents' approach to s.45, the result would be to confer an immunity against any loss or injury sustained after 1 July 1989; even a loss or injury flowing from use before 1 July. On the applicants' approach, of course, none of this matters; s.45 is irrelevant. But the applicants then run into s.69H.
The second point is that counsel for the applicants argues that his clients' claims lie outside both s.45 and s.69H. In relation to s.45, he argues that the losses claimed by his clients were not sustained "because of the use of 'Helix'". He says, no doubt correctly, that "Helix" was designed and manufactured for use as an insecticide on cotton; it was not designed or used as a stock feed or stock feed additive. It follows, according to him, that it was not a "use" of the product to feed to stock material treated with it. He says that the words "directly or indirectly" refer to "loss or injury", not to "use".
I do not accept this submission. In my opinion, the words "directly or indirectly" limit the word "sustained". The subsection applies to a loss indirectly sustained because of the use of "Helix". That is the case maintained by the applicants. They say that, because it was used as an insecticide, cattle ingested "Helix"; whether because it was contained in cotton waste that was fed to them, or because they grazed on over-sprayed pastures or drank contaminated waters. If "Helix" had not been used as an insecticide on cotton, none of these things would have happened.
The applicants' argument in relation to s.69H focuses on the word "handling". Counsel says that, as a matter of ordinary English, "handling" means "treatment or management". I agree. It is perhaps arguable that the losses complained of did not stem from the treatment or management of "Helix"; although "management" seems wide enough to cover all aspects of the control of a product up to its final disposal. However, it is pointless to concentrate on the ordinary meaning of "handling". As already explained, in s.69H the word bears the extended meaning contained in s.3 of the Agvet Code; it includes both "use" and "disposal". Both these words apply to the case alleged by the applicants.
Finally, counsel for the applicants drew attention to the fact that some correspondence, including a letter of 19 July 1994 from NRA to Crop Care, speaks of an "extension" of the clearance. He submits that an extension is not the grant of a clearance by the Council or NRA.
I am not sure of the relevance of this submission. The document dated 17 March 1993 that is annexed to Ms Buckley's affidavit states that the Council "grants clearance" to "Helix". The only conditions of that grant relate to the use of the product. There is no limitation as to time, so it is difficult to understand the later correspondence about an extension. In any event, March 1993 seems to be the only occasion when the Council indicated approval of the product. If the applicants do not rely on this communication, I do not see how they have any claim against the Commonwealth (in respect of anything that happened after 1 July 1989) or the NRA. If, contrary to my understanding of the facts, there was a communicated extension of approval after 1 July 1989, it would nonetheless remain true that, after 17 March 1993, the product was one "in respect of which a clearance has been granted by the Council". On the fourth and fifth respondents' categorisation of s.45, the section would confer an immunity in respect of any loss sustained after that date, whenever the spray was applied. On the applicants' theory, s.69H would nevertheless operate.
As I have indicated, I do not think it necessary finally to determine the precise effect of s.45 of the 1988 Act. Either that section or s.69H of the Administration Act prevents the applicants establishing liability in this proceeding against the Commonwealth or NRA. Insofar as it relates to those respondents, the proceeding must be dismissed.
Counsel for those respondents submitted that, if the proceeding was dismissed against them, this should be with costs. I accept this but I think it is unreasonable to saddle the applicants with a separate bill of costs for each respondent. NRA is a Commonwealth instrumentality. The litigation has not involved any divergence of interests between NRA and the Commonwealth and it is difficult to see how such a divergence could ever arise. I do not see why it was necessary for the Commonwealth and NRA to be separately represented on these motions, especially by both senior and junior counsel. I think the fourth and fifth respondents should have their costs of the motions and the proceedings generally; but costs should be taxed on the basis of both respondents being represented by a single firm of solicitors and single set of counsel.
New South Wales and Queensland
Notwithstanding that neither New South Wales nor Queensland is named in s.45, their counsel submit that the section excludes any action against those States. They put two submissions, dealing with different periods of time. In respect of the period during which clearances were granted by the Council (1 July 1989 to 15 June 1993), they point out that the applicants seek to make each of the two States vicariously liable for the negligence of the employee of that State who was a member of the Council. But s.45 originally precluded an action against a "member of the Council" and, after 1992, against a "member of the former Council". So the member who represented the State could not have been made personally liable. In relation to the period before 1 July 1989, when each State was represented on TCAC, they rely on s.46.
In considering this submission, I should immediately say that I question the applicants' claim that the States are vicariously liable for any negligent act or omission of the Council members appointed to represent them. It is true that those members must each have been nominated by the designated State Minister (s.23(4) of the 1988 Act); but they were appointed by the Commonwealth Minister (s.23(2)) to act with others in performing functions imposed upon them by a Commonwealth law (s.9) and exercising powers under that law (s.10). In one sense, no doubt, each member of the Council "represented" the State or organisation by whom he or she was nominated. But no member was amenable to the instruction of that State or organisation in connection with the performance of his or her duties. On the contrary, each member was bound to act in good faith and in accordance with his or her own judgment as to the manner in which the Council should perform the functions, and exercise the powers, committed to it by the Act.
The only exception to this proposition is one that points up the difficulty in the applicants' claim. Section 11 empowered the Minister to "give directions in writing to the Council concerning the performance of its functions and the exercise of its powers" and provided that "the Council shall comply with those directions". It is true that, before exercising this power, the Minister - that is, the Commonwealth Minister - was required to consult each relevant State and Territory Minister. But this does not mean that each (or any) of them necessarily approved each direction.
However,
this issue has not been argued and I do not express a concluded view. If, on ordinary principles of vicarious
liability, a State is liable for the negligence, as Council member, of its
nominated representative, s.45 did not exclude that liability. As they needed to do, counsel for New South
Wales and Queensland adopted the Commonwealth/NRA argument about the effect of
s.45. The alternative approach, argued
by the applicants, does not assist New South Wales or Queensland because s.69H
of the Administration Act makes no reference to them or to members of the
former Council. However, even on the
Commonwealth/NRA argument, s.45 did no more than confer an immunity on the
persons referred to in the
section. There is no warrant for
extending that immunity to others.
In relation to the period before 1 July 1989, there is a stronger argument in favour of vicarious liability. TCAC was not a statutory body. It had no statutory functions or powers. It was merely a committee composed of people appointed by State and Territory Ministers who met to perform business selected by themselves. However, once again I do not express a concluded opinion. If the States are vicariously liable for the actions of their representatives on TCAC, similar considerations apply; with the added difficulty that it does not appear that any person who represented either State on TCAC was ever a "member of the Council".
At a final hearing when all the facts are known, New South Wales and/or Queensland may succeed in resisting vicarious liability for acts or omissions of their representatives on TCAC or the Council. But that result is not so manifestly clear as to justify an order striking out those parts of the Further Amended Statement of Claim that plead vicarious liability. It is, however, clear that neither State is bound by the Trade Practices Act: see Bradken Consolidated Limited v Broken Hill Proprietary Company Limited (1979) 145 CLR 107. To the extent that paras. 29 to 38 of the Further Amended Statement of Claim rely on the Trade Practices Act, as against New South Wales and Queensland, they are misconceived. I understand that counsel for the applicants accepts this and proposes to make further amendments deleting reliance on that Act as against New South Wales and Queensland.
As indicated, paras. 71 to 98 of the Further Amended Statement of Claim contain other claims against New South Wales. They comprise allegations of breaches of s.42 of the Fair Trading Act (NSW) and of common law negligence. In relation to the Fair Trading Act, counsel complain that the pleading does not allege that, in giving advice to graziers, the Department of Agriculture acted in trade or commerce. But both the Amended Statement of Claim and the Further Amended Statement of Claim allege that, in making the representations attributed to the Department, New South Wales carried on a business within the meaning of s.3 of the Fair Trading Act. That is enough to attract s.42. Section 42(1) provides that a person "shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Section 3 defines "trade or commerce" as including "any business or professional activity". So a person who engages in misleading or deceptive conduct, or conduct that is likely to mislead or deceive, in the course of conducting a business contravenes s.42. I see no deficiency in the form of the pleading insofar as it relates to contravention of the Fair Trading Act.
In relation to Queensland, there are two Fair Trading Act points. The first arises out of the date of commencement of the Act. This was said by counsel to be 9 October 1989, after the demise of TCAC. So nothing done by Queensland's representative on TCAC could amount to a breach of the Queensland Fair Trading Act. The other point is that s.99(3) of the Queensland Fair Trading Act appears to give a right of action for breaches of s.38 only to consumers. The applicants and group members appear not to fall within the statutory definition of that term. Once again, I understand counsel for the applicants to accept these points and that he will further amend his pleading so as to take account of them. I need not make any formal direction about amendment.
A more substantial issue raised by counsel for New South Wales and Queensland is whether the allegations of breaches of the two Fair Trading Acts and of common law negligence are within the jurisdiction of the Court. These claims arise under State law. Subject to the possible application of the cross-vesting legislation, if they stood alone, they would clearly be outside jurisdiction.
The element in the proceeding that attracts the jurisdiction of this Court is the applicants' claim that the first, second, third, fourth and fifth respondents contravened s.52 of the Trade Practices Act 1974. The further claim against those respondents of common law negligence plainly falls within the associated jurisdiction conferred on the Court by s.32 of the Federal Court of Australia Act. It arises out of the same substratum of facts: see Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261. Although I have held that the claims against the fourth and fifth respondents must fail, because of s.45 of the 1988 Act or s.69H of the 1992 Administration Act, that does not mean that they must be disregarded in considering what is the relevant substratum of facts: see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. If the claims against New South Wales and Queensland also arise out of the same substratum of facts as the Trade Practices Act allegations against the first five respondents, it is immaterial that they involve additional parties and different legislation.
Before
the enactment of the cross-vesting legislation in 1987, it was not uncommon for
members of this Court to be required to determine whether or not a particular
claim arose out of the same substratum of facts as another claim. The question was not always easy to
determine, especially at an early stage of the litigation. Since 1987 the problem has virtually
disappeared. Section 4(1) of each of the
State cross-vesting Acts gives to this Court "original and appellate jurisdiction with respect to State
matters". The term "State matter" is defined by
s.3(1) as "a matter in which the
Supreme Court has jurisdiction otherwise than by reason of a law of the
Commonwealth or of another State".
Section 9(2) of the Commonwealth Act, the Jurisdiction of Courts
(Cross-vesting) Act 1977, authorises this Court,
amongst others, to "exercise
jurisdiction (whether original or appellate) conferred on that court by a
provision of this Act or of a law of a State relating to cross-vesting of
jurisdiction". Contrary to the
submission of counsel for Queensland, the exercise of this power is not
dependent upon an order of the relevant Supreme Court transferring a proceeding
to this Court. This was pointed out as
long ago as 1988 in an article by Mr Keith Mason QC (one of the designers of
the cross-vesting scheme) and Professor James Crawford. In an article, "The Cross-vesting Scheme", published in 62 Australian
Law Journal 328, they said at 330:
"It will be noted that neither the Federal nor the State Acts in terms requires that a proceeding be commenced in what would otherwise be the 'correct' court. Instead, in order not to 'detract from the existing jurisdiction of any court', there are elaborate provisions for transfer of cases. Thus the consequences of choice of an inappropriate forum will no longer be absence of jurisdiction but will be the risk of an order of transfer being made to the more appropriate forum. The transfer provisions in the Act cover three distinct situations."
Judges have acted on that basis on many occasions, accepting jurisdiction notwithstanding the absence of a transfer order. A recent example is provided by the decision of Spender J in Re Matheson; Ex parte Worrell v Matheson (1994) 121 ALR 605; see especially 612-613.
It follows that this Court has jurisdiction, under the cross-vesting legislation, to entertain the applicants' claims against New South Wales and Queensland, even if they do not arise out of the same substratum of fact as the Trade Practices Act claims against the first five respondents. As it happens, I think they do. However, counsel for Queensland argues that s.33G of the Federal Court of Australia Act prevents the exercise of this jurisdiction in this case. That section appears in the Part of that Act (Part IVA) dealing with representative proceedings in this Court and provides:
"33G. A representative proceeding may not be commenced if the proceeding would be concerned only with claims in respect of which the Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross-vesting) Act 1987 or a corresponding law of a State or Territory."
It will be noted that the only limitation imposed by the section is on the commencement of a representative proceeding that is concerned only with claims in respect of which the Court has jurisdiction solely because of a cross-vesting order. The word "proceeding" refers to the action brought by the applicant or applicants: see s.33C. The word is of variable import. A "proceeding" may be wider than a "matter". This is the corollary of a statement made by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller at 603: "Though the concept of 'matter' may be narrower than that of a 'legal proceeding', it is a term of wide 'import'."
In the present case, the "representative proceeding" is the matrix of claims brought by the applicants as specified in the Application and Further Amended Statement of Claim. On any view, some of those claims are within the Court's jurisdiction independently of the cross-vesting legislation. Even if the jurisdiction to determine the claims against New South Wales and Queensland depends on that legislation, the proceeding is not "concerned only" with such claims.
The motions by New South Wales and Queensland should be dismissed. In relation to costs, the appropriate course is to make the costs of the motions applicants' costs in the proceedings against New South Wales and Queensland.
I certify that this and the preceding forty-three (43) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.
Associate:
Dated: 29 May 1996
APPEARANCES
Counsel for the Applicant: J E Rowe and L Muston
Solicitors for the Applicant: Peter Long & Co
Counsel for the First, Second
and Third Respondents: R J Buchanan QC and C McArthur
Solicitors for the First, Second
and Third Respondents: Phillips Fox
Counsel for the Fourth Respondent: A Bennett SC and
S W Gibb
Solicitors for the Fourth
Respondent: Australian Government Solicitor
Counsel for the Fifth Respondent: A R Emmett QC and J E Marshall
Solicitors for the Fifth Respondent: Moray & Agnew
Counsel for the Sixth Respondent: M Windsor
Solicitors for the Sixth Respondent: Audrey Lee
Counsel for the Seventh Respondent: A J Sullivan QC and P Freeburn
Solicitors for the Seventh Respondent:Crown Solicitor
Date of hearing: 10 November 1995
