FEDERAL COURT OF AUSTRALIA

McCormack v Newburg Enterprises Pty Ltd [2002] FCA 457

Superannuation Industry (Supervision) Act 1993 (Cth) ss 147, 148, 313, 314

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3(2), 4(3), 5(4)

Re Sabri:  ex parte Sabri v Brien (1995) 60 FCR 131 cited

Carter v Vos [1999] FCA 1703 cited

Official Trustee in Bankruptcy v Higgins [2000] FCA 1850 cited

CHRISTINE ANNE MCCORMACK v NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860) and FREDERICK CHRISTOPHER PATRICK MCCORMACK

W536 of 2001

LEE J

12 APRIL 2002

PERTH

THE COURT ORDERS THAT:

The proceeding be transferred to the State Family Court of Western Australia.

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

REASONS FOR JUDGMENT

1                     In this matter the applicant (“the wife”), in proceedings commenced in this Court on 29 November 2001, seeks a declaration that the first respondent (“the Trustee”) and the second respondent (“the husband”) contravened s 147 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the Act”) and an order under s 148 of the Act that the Trustee and the husband pay damages for the loss or damage suffered by the wife by reason of the contravention.  Injunctive orders are also sought pursuant to ss 313 and 314 of the Act.  The proceedings relate to the management of the Western Airfreight Superannuation Fund (“the Fund”).

2                     The wife and husband are parties to a proceeding in the Family Court of Western Australia (“the State Family Court”) commenced on 9 November 1998.  On 1 June 2001 the Full Court of the Family Court of Australia made certain orders relating to the rights in property of the wife and husband.  On 31 October 2001 the wife sought further orders in the State Family Court in respect of property of the marriage, which inter alia, included the following:

(a)        The husband provide the wife with valuations of all assets in the Fund as at 30 June 2000 and 30 June 2001 within 28 days;

(b)       the husband provide the wife with details of the calculations of her superannuation entitlement under the Fund within 14 days of the valuations being provided to the wife.

3                     When the proceeding in this Court came on for directions the parties were asked to provide submissions on whether the proceeding should be transferred to the State Family Court.  The applicant submits that an order should be made under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Cross-Vesting Act”) that the proceeding be transferred to the State Family Court.  The Trustee submits that the proceeding should not be transferred and, further, that the State Family Court does not have jurisdiction to determine the proceeding.  The husband made no submissions.

4                     Jurisdiction to provide a remedy under s 148 of the Act is not conferred exclusively on the Federal Court.  Injunctive orders under ss 313 or 314 of the Act, however, are said to be orders to be made by this Court.

5                     The Statement of Claim in the wife’s proceeding in this Court is directed to obtaining an account of the operation of the Fund in which the wife claims an interest, and orders providing for a distribution therefrom.  It is plain that the relief sought is related to the orders sought by the wife in the State Family Court in the proceeding that has been on foot in that Court for more than three years.

6                     The State Family Court, if able to deal with the whole of the matter, would be better placed than this Court to make orders resolving the conflict between the parties.

7                     Obviously it is undesirable that the related litigation be conducted in parallel in separate courts.  It is wasteful of both public and private resources to do so and may lead to a circumstance that is not in the public interest if two courts appear to have made conflicting findings or orders in the same matter.  (See:  Re Sabri:  ex parte Sabri v Brien (1995) 60 FCR 131; Carter v Vos [1999] FCA 1703 at [6] – [8]; Official Trustee in Bankruptcy v Higgins [2000] FCA 1850 at [22].)

8                     That principle is recognised in s 5 of the Cross-Vesting Act which in respect of such parallel proceedings provides that where it is more appropriate that a proceeding in one court be determined in another court and, inter alia, it is in the interests of justice that the proceeding be so determined, the first court shall transfer the proceeding to the other court.

9                     The relevant provision of the Cross-Vesting Act in respect of the transfer of a proceeding in this Court to the State Family Court is s 5(4) which directs this Court to transfer such a proceeding to the “Supreme Court of [the] State” if it appears that it is more appropriate that the proceeding be determined by the latter court.  Under s 3(2) of the Cross‑Vesting Act, “Supreme Court of a State” includes the State Family Court.

10                  Section 4(3) of the Cross-Vesting Act provides as follows:

“Where a proceeding is transferred to the Federal Court, the Family Court or a State Family Court of a State, that court has, by virtue of this sub-section, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this sub-section.”

11                  It is clear, therefore, that the State Family Court would have jurisdiction to determine the whole of the matter if the proceeding in this Court is transferred to that court.

12                  I am satisfied that it is more appropriate that the proceeding in this Court, a proceeding related to the proceeding pending in the State Family Court, be determined by the State Family Court.  I am also satisfied that it is otherwise in the interests of justice that the proceeding be determined by the Family Court, in particular, to make more efficient use of judicial resources; to prevent contrary findings of fact arising or conflicting orders being made on the same material; and to prevent unnecessary costs being incurred by the parties to the litigation.

13                  Being so satisfied it follows that I am required under the Cross-Vesting Act to make an order that the proceeding in this Court be transferred to the State Family Court and I will so order.  Any costs in the proceeding to date are to be as determined by the State Family Court.

Associate:

Dated:              12 April 2002