FEDERAL COURT OF AUSTRALIA

Kurniadi v Loh [2002] FCA 1021

PRACTICE AND PROCEDURE – six applications seeking damages and other relief under the Trade Practices Act 1974 (Cth) and the Corporations Law – all applications having similar factual foundation – amounts involved in each application about $50,000 – further similar applications foreshadowed – whether each application should be transferred to the Federal Magistrates Court.

Federal Court of Australia Act 1976 (Cth), s 32AB(6)

Federal Court Rules, Order 82 r 6(1)

O’Neill v Medical Benefits Fund of Australia [2002] FCAFC 188 referred to

WABG v Minister for Immigration and Multicultural Affairs [2002] FCA 138 referred to

HERMAN KURNIADI v SIMON THUANG CHYE LOH, ROBERT ASHMAN,

STEPHEN WILLIAM MARSHALL and NEIL HENRY POLLARD

N1190 of 2001

IWAN SALIM v SIMON THUANG CHYE LOH, ROBERT ASHMAN,

STEPHEN WILLIAM MARSHALL and NEIL HENRY POLLARD

N1191 of 2001

CHARLES LIAW and HERLINA SALIM v SIMON THUANG CHYE LOH, ROBERT ASHMAN STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD

W147 of 2002

MARIATI T. HARDI v SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD

W148 of 2002

SOEDARJANTO v SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD

W157 of 2002

SYLVIA POERWITA v SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD

W168 of 2002

CARR J

14 AUGUST 2002

PERTH

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

1                     These reasons are concerned with the question whether each of the above applications should be transferred to the Federal Magistrate Court.  Each of the applications was separately filed on various dates between 13 August 2001 and 30 May 2002.  No orders have been made for consolidation of the various proceedings or the like, but generally (in relation to the two applications first filed) interlocutory orders have been made at the same time and, in relation to all of the matters the question of transfer has been considered simultaneously. 

2                     It appears from each of the applications and the statements of claim in each matter that each applicant lives in Indonesia and is a citizen of that country.  The claims made in each application appear to be very similar. 

3                     Each applicant seeks damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) or, in the alternative, pursuant to s 1005 of the Corporations Law, against the respondents.  In summary, each applicant claims that he or she was induced to enter into a contract relating to the agistment of ostriches with a company called Ostrich Meat & Marketing Co (Australia) Ltd (“the Company”).  The Company is the fifth respondent in four of the applications.  Motions to join the Company have been filed in the other two applications.  The individual respondents are said to be directors of the Company. 

4                     Each applicant claims that he was induced into entering into the contracts with the Company by virtue of conduct which he or she says constituted misleading or deceptive conduct.  The other respondents are sued on the basis that they are said to have been involved in contraventions of the Trade Practices Act and the Corporations Law. 

5                     The individual amounts sued for by each applicant are not substantial, in terms of comparable proceedings in this Court.  I have been given to understand that the average amount sued for is in the vicinity of $50,000 per applicant.

6                     The four applications filed in 2002 came before me for directions on 14 June 2002.  There were on that occasion appearances, either in person or by counsel, on behalf of every applicant and the third and fourth respondents to each of the six applications.  I raised with the parties then appearing or represented the question whether each application should be transferred to the Federal Magistrates Court.  I invited the parties to file written submissions in that regard. 

7                     Written submissions have been filed on behalf of each of the applicants and also on behalf of the third and fourth respondents. 

8                     I do not propose to summarise all of those submissions, but I have given them due consideration. 

the legislative framework

9                     Section 32AB(1) of the Federal Court Act 1976 (Cth) provides that if a proceeding is pending in this Court, the Court may, by order, transfer it to the Federal Magistrates Court.  Section 32AB(2) provides that the Court may make such an order on the application of a party to the proceeding or on its own initiative. 

10                  Section 32AB(6) provides as follows:

“32AB(6)   [Factors that must be taken into account]   In deciding whether to transfer a proceeding to the Federal Magistrates 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 Magistrates Court; and

   (c)     whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

   (d)    the interests of the administration of justice.”

11                  Order 82 rules 6(1) and (7) of the Federal Court Rules relevantly provide as follows:

“RULE 6  TRANSFER ON COURT’S OWN MOTION

6(1)   Subject to the relevant Act, the Court or a Judge may at any time on the Court’s or the Judge’s own motion transfer a proceeding … to the Federal Magistrates Court.

RULE 7   FACTORS TO BE CONSIDERED

7   In deciding whether to transfer a proceeding … to the Federal Magistrates Court, the Court or a Judge must take into account, in addition to the factors mentioned in subsection 32AB(6) of the Act in relation to a proceeding, … the following factors:

(a)   whether the proceeding … is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;

(b)   whether, if the proceeding … is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding … is not transferred;

(c)   whether the proceeding … is likely to be heard and determined earlier in the Federal Magistrates Court;

(d)   the wishes of the parties.”

12                  In my view, none of the applications is likely to involve questions of general importance. 

13                  If each proceeding is transferred to the Federal Magistrates Court I consider that it is likely to be heard and determined at significantly less cost and more convenience to the parties than if it is not transferred.  My impression of proceedings in the Federal Magistrates Court is that they are conducted with significantly less formality than in this Court – see O’Neill v Medical Benefits Fund [2002] FCAFC 188 at [13] and [14]. 

14                  My assessment is that each application is likely to be heard and determined earlier in the Federal Magistrates Court.  My assessment is based on information provided by that Court about the rate at which, and the time within which the Federal Magistrates Court is currently managing to hear and determine applications either made in or transferred to it.  

15                  Both the applicant and respondent parties have submitted that each of the matters should not be transferred to the Federal Magistrates Court. 

16                  As I have mentioned, I have considered the respective submissions on that point.  I regard the fact that the parties’ preferences are for the applications to proceed in this Court as one to which I should accord a reasonable degree of weight, and I have done so.   

17                  I now turn to the remaining factors set out in s 32 AB(6) of the Federal Court of Australia Act. 

18                  There are no proceedings in respect of an associated matter pending in the Federal Magistrates Court. 

19                  The Registrar of the Federal Magistrates Court has recently indicated to me that the resources of that Court are sufficient to hear and determine these applications. 

20                  In my view, subject to one factor which I mention below, the interests of the administration of justice will be equally well served whether this application be heard in this Court or in the Federal Magistrates Court. 

21                  However, as I mentioned in WABG v Minister for Immigration and Multicultural Affairs [2002] FCA 138 at par 16, one aspect of the administration of justice is the efficiency of the allocation of resources.  If each of these applications is heard in the Federal Magistrates Court and then an appeal were brought to this Court, it will not be automatic that the appeal will be heard by a Full Court.  There are provisions whereby the appellate jurisdiction of this Court in such circumstances may be exercised by a single judge.  Such appeals are so heard throughout Australia with increasing frequency.  There is a potential for the saving of judicial resources.  As I observed in WABG, the administration of justice includes not only the giving of a fair hearing to the parties and a right of appeal, but also the expeditious hearing and determination of other matters awaiting hearing in this Court. 

22                  I return to the matter of the expressed wishes of the parties that these applications remain in this Court.  I propose to deal specifically with some (but not all) of the points raised which may not have been dealt with above.

23                  The applicants propose to ask that three of the applications be brought to hearing expeditiously and be regarded as test cases.  They foreshadow that a further seven applications are about to be filed so as not to run the risk of limitations issues, but it is proposed that all but the first three await the outcome of those proceedings. 

24                  The respondents say that the combined quantum of damages in the existing and further contemplated proceedings will be in the area of $900,000.  Even assuming that to be the case, each individual application involves only an average of $50,000.  I think it is unlikely that more than, say, three of the applications will proceed to trial.  Accordingly there do not appear to be any jurisdictional problems in terms of the amount or amounts at issue. 

25                  The respondents raised in their submissions the matter of the claims based on the Corporations Law and say that the Federal Magistrates Court would not have jurisdiction in relation to those claims.  In my view, those claims would fall within the accrued or associated jurisdiction of the Federal Magistrates Court in accordance with the conventional principles. 

26                  The parties submitted that if I were minded to transfer the applications to the Federal Magistrates Court, I should defer doing so until procedural orders had been made to put the applications on track for a hearing.  In my view, it would be preferable for all those procedural matters to be dealt with by the Federal Magistrate.  I think that in the circumstances of the present matters it would be an unwarranted intrusion by this Court, having made a decision to transfer the applications, to retain jurisdiction for the purpose of making programming and other interlocutory orders. 

27                  After balancing the various factors which I am obliged to consider including the various factors raised by the parties, I consider that it would be in the interests of justice that each of these matters be transferred to the Federal Magistrates Court.  There will be an order in each application in those terms. 

Associate:

Dated:              14 August 2002