Citibank Ltd & Anor v Savic & Ors [2000] QSC 261

J pl, \I State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J No 4457 of 2000 CITIBANK LIMITED (ACN 004 325 080) and DAVID BYE and ANTON SAVIC and DENISE J SAVIC and STEVEN ISAAC BIK and ADRIANA BEATRIZ BIK and RODNEY C KLEASE and MARIE COWMAN and STEPHEN CHARLES MELTON and KAY H MELTON and DONALD ROBSON McNAUGHT and ELIZABETH JEAN McNAUGHT and REVISED COPIES ISSUED State Reporting Bureau Date J-,;; f / ",,.--,.) I Applicants First Respondents Second Respondents Third Respondents Fourth Respondents Fifth Respondents -Ith Fl11111·, Tire L:1w Court:-;, George Strecl, Brish:111e, Q. ,.1()()() Telephone: (07) JZ-17 -1361) Fax: (07) 32 ➔ 7 55.\2 -- 1 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) DAVID RANDS TREVOR and HAZEL ZIMMERMANN and MICHAEL McCURDY and VIRGINIA McCURDY and PIUS TELL and REGINA TELL and TERENCE JAMES STREET and LYNNE STREET and GARRY OREVICH and DELIA OREVICH and AUSTRALASIAN MANAGEMENT CONSULTANTS PTY LTD (ACN 010 304 033) and LLOYD REGINALD ROSS BRISBANE .. DATE 20/06/2000 JUDGMENT 2 Sixth Respondents Seventh Respondents Eighth Respondents Ninth Respondents Tenth Respondents Eleventh Respondent Twelfth Respondent 10 20 30 40 50 60 -- 2 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) HER HONOUR: This is an application for the transfer of certain actions from the District Court to the Supreme Court at the instance of the defendant. Such an application is governed by section 83 of the District Court Act 1967 which provides as follows: 10 11 (1) Where there is now or hereafter pending in a District Court any action, the defendant may make application to the Supreme Court or a judge thereof to transfer the action to the Supreme Court. (2) The Court or judge shall not grant the application unless it or the judge is satisfied some important question of law or fact is likely to arise." This application raises the discretion in this Court to consider whether or not the action or actions should be transferred and in exercising that discretion I am required to have regard to the question of whether or not there is some important question of law or fact which is likely to arise. (See also Shannon v. Australia and New Zealand Banking Group Ltd (No 1) [1994] 2 QdR 560 at 561-562). The applicants, Citibank Limited and David Bye, are the first and second defendants in a number of District Court proceedings commenced by first to the tenth respondents. The eleventh and twelfth respondents in this application are third parties that have been joined to the District Court proceedings commenced by the sixth respondents. Although they have been served they are not before the Court. In determining whether or not there is an important question of law or fact that is likely to arise I have been referred 3 JUDGMENT 20 30 40 50 60 -- 3 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) by the applicants' counsel to a number of issues. The first one is the fact that because there are a number of pieces of litigation there is the question of similar fact evidence. This is particularly so when there are common issues in each of the pieces of litigation. 10 But the similar fact evidence involved is the question of whether or not similar representations were made to the plaintiffs in the District Court actions. That matter is covered in Cross On Evidence, Fifth Australian Edition at 20 paragraph 21280, in particular the last paragraph. It appears to me that the law in this area is well settled and there is no important question of law or fact to be determined. The next issue raised was the question of the joinder of third parties. It is apparently expected to join the third parties in all the pieces of litigation and similar questions of similar fact arise in those matters. There is the additional factor that there may well be issue estoppel because the defendants are the same in each action and the third parties are likely to be the same. If, however, there is issue estoppel as a result of one of these actions being tried first, as there inevitably will be, and that matter is settled I cannot see that that raises an important issue or law or fact. 4 JUDGMENT 30 40 50 60 -- 4 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) It seems to me that the most significant reason advanced by the applicants as to why they want the matters transferred to the Supreme Court is that because of practical matters. The litigation has been moving slowly in the District Court in Southport and the applicants say they want to get the 10 matter moving. But no application has been brought in the District Court in Southport with regard to any directions to be given in the case or cases. No application has been brought for the matters to be heard whether together or consecutively. The District Court and the Supreme Court now work under Uniform Rules. There is no reason why an application could not be made by the present applicants in the District Court to deal with the practical matters that the applicants raise. I do not regard that as an important question of law or fact. The first to the tenth respondents who are the plaintiffs in the District Court actions are individuals whose claims are for between $40,000 and $150,000. They have chosen to bring their claims in the District Court in Southport where they live and that is why an important question of law or fact would be required before the matter should be transferred to the Supreme Court in Brisbane with the attendant prejudice that might be suffered. The prejudice that it is said may be suffered are that each of the respondents is an individual. They are not corporations, and any adverse cost effect by reason of the 5 JUDGMENT 20 30 40 50 60 -- 5 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) transfers would of course have to be borne by them. This may be able to be remedied by a precise costs order by me, but of course costs act as a disincentive in litigation and I accept that the costs consequences are likely to be a prejudice to the respondents. All of the respondents live in and around the Southport area and it is convenient for them that the trial is to be heard in Southport. Solicitors for the respondents are at Southport. It was suggested by counsel for the applicants that perhaps a Supreme Court Judge could go and sit in Southport to hear some of the evidence to avoid prejudice to the respondents but that prejudice could be much more easily avoided by the matters being heard in Southport and the District Court, particularly when the sums of money involved in each individual case do not come close to exceeding the jurisdiction of the District Court. I am not satisfied that the claims, which are fairly ordinary claims under the Trade Practices Act, raise any important questions of law or fact that may take them out of the ordinary. The applicants' counsel also raised a problem about discovery, but again that is a practical matter which can be dealt with in the District Court in Southport. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 7 -- 20062000 Tl/RB28 M/T 7520/2000 (Atkinson J) It appears to me that in essence the only real difference between the Supreme Court and the District Court as far as dealing with this matter is concerned is the fact that there is a supervised case list in the Supreme Court. However, that is not sufficient to raise an important question of law 10 or fact. I am sympathetic to the view that the cases need management, but that can be achieved in the District Court. I am also sympathetic to the idea that the cases need, as the respondents have already offered, an alternative dispute resolution program, but that is not sufficient to encourage me to transfer them to the Supreme Court because that can be achieved in the District Court as just as well as it can be achieved in the Supreme Court. In all the circumstances I refuse the application. I order that the applicants pay the respondents' costs of and incidental to the application to be assessed. 7 JUDGMENT 20 30 50 60 -- 7 of 7 --