FEDERAL COURT OF AUSTRALIA

Australian Underwriting Agencies Pty Ltd v QBE Insurance Ltd [1999] FCA 568

AUSTRALIAN UNDERWRITING AGENCIES PTY LTD v QBE INSURANCE LTD

NO. V 45 of 1999

HEEREY J

29 APRIL 1999

MELBOURNE

THE COURT ORDERS THAT:

1.         The proceeding be transferred to the Supreme Court of New South Wales.

2.         The applicant pay the respondent’s costs of and incidental to the notice of motion dated 9 April 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The respondent has brought a notice of motion seeking a transfer of this matter to the Supreme Court of New South Wales.  The claim of the applicant, as appears from the statement of claim, is for $677,839, being the balance of commission due under an underwriting agreement. 

2                     I agree with the submission of counsel for the respondent that this matter is plainly outside the original jurisdiction of the Federal Court.  It is a pure common law claim and there is no claim alleged which would attract a jurisdiction vested in this court by the laws made by the Parliament (see s 19 of the Federal Court of Australia Act 1976 (Cth)).  Moreover, the persons concerned in the case, the documents and all other materials, are in Sydney.

3                     Counsel for the applicant has said that there had been a successful application by the applicant in the Federal Court in Victoria to set aside a statutory demand served by the respondent.  However, that seems to be simply a matter of history and cannot confer jurisdiction on this court.

4                     The underwriting agreement sued on has a provision, cl 9.2, as follows:

“This agreement shall be governed and construed in accordance to the laws of the Australian Capital Territory and the parties hereto irrevocably submit to the jurisdiction of the courts of the Australian Capital Territory and any courts which may hear appeals therefrom.”

To my mind that is not a conferral of jurisdiction on the Federal Court.  It is simply making clear that the jurisdiction extends to the courts of the Australian Capital Territory and courts on appeal from such courts, which happen to include the Federal Court, as well as the High Court.

5                     As counsel for the respondent points out, once the matter is transferred to the Supreme Court of New South Wales it would be open to the applicant to seek a stay of the proceedings in the exercise of that court’s discretion. 

6                     Counsel for the applicant mentioned that the disputed subject of the present application turns on a discrete point of construction, namely whether “gross premium written” appearing in the remuneration clause entitles the respondent to deduct amounts paid by the applicant to travel agents as remuneration.

7                     Counsel says that there are other matters in the current litigation in Sydney which go beyond the agreement and that it would be convenient to have this short point of construction decided in this court.  However convenient that course may be, it cannot create jurisdiction where none exists.  In any event, I have no doubt that there are appropriate procedures in the Supreme Court of New South Wales for the separate trials of issues such as the one mentioned.

8                     For those reasons I will grant the order sought in the notice of motion.  I will order:

1.         The proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(4) of the Jurisdiction of Courts (Cross‑Vesting) Act (Cth) 1987. 

9                     I think the applicant should pay the respondent’s costs of the notice of motion.  I cannot see any reasonable justification for bringing this claim in this court either as a matter of jurisdiction or as matter of convenience.  It was reasonably foreseeable that the respondent would be put to the expense of bringing this motion.  So I will order:

2.         The applicant pay the respondent's costs of and incidental

            to the notice of motion dated 9 April 1999.

Associate:

Dated:              5 May 1999