Eagle Boys Dial-A-Pizza Australia Pty Ltd v Ranniso Pty Ltd & Ors [1999] QSC 135

) ) ) ~6t)~:L State Reporting Be 1C1! \ ~5 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 CHAMBERS DERRINGTON J No 7386 of 1998 EAGLE BOYS DIAL-A-PIZZA AUSTRALIA PTY LTD (ACN 003 169 391) and RANNISO PTY LTD (ACN 063 908 565) and ELKSMOOTH PTY LTD (ACN 068 331 019) and MARK RONALD JOSEPH CLIFFORD and JEANETTE MARGARET CLIFFORD and TIMOTHY MARCUS DIXON BRISBANE .. DATE 20/04/99 JUDGMENT REVISED COPfES ISSUED State Reporting Bureau Date 0' /" / Plat.ntiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant It Filllll'. TI,c 1.:l\v ('fllll·ls. CCIII'!'t' Sln·d. BI·ish:ll1C. O . .t()()() Tt:lt~llhflnl': (1l7) 32A7 43{'() F" ..c (1l7) 1!.47 ,,:; 17. .. -- 1 of 6 -- 200499 T2!HMH8 M/T 4311/99 (Derrington J) HIS HONOUR: This is an application for a stay of an action in this Court temporarily pending the determination of an action in the New South Wales Industrial Court or Court Sessions relating to the terms of the contract which is the subject of the action in this Court. The present 10 applicants, the defendants in this action, were franchisees under a franchise and the respondent plaintiff was the franchisor. The applicants terminated the franchise and the franchisor has brought these proceedings for damages for breach of the contract. 20 c As it turns out, the applicant had some months prior to this action, commenced proceedings in the New South Wales cIndustrial Court seeking either the termination or variation ,of the franchise agreement on grounds provided by 30 legislation concerning unfair contracts that are not available in this jurisdiction. It is not argued by the respondents that the present applicants did not have jurisdiction to seek their remedy in New South Wales which 40 theoretically would, if successful, have some influence upon the terms of the contracts which the respondents are trying l -~ / to enforce in the present action. It seems that prima facie, and if the matter were considered 50 alone, there would be reasonable grounds in justice to stay the present proceedings until the New South Wales matter is determined, because the effect of the New South Wales action may be to vary the very contract upon which the action in Queensland depends. If the Queensland action proceeds and 60 2 ORDER -- 2 of 6 -- 200499 T2/HMH8 M/T 4311/99 (Derrington J) comes to judgment before the New South Wales action is determined, the result may be that the respondent plaintiff may recover a judgment against the applicant defendants upon a contract which is varied after that date by the New South Wales Court and the variation would be binding on both 10 parties. That is an undesirable state of affairs. Certainly, according to the authorities, particularly in Magic Markets Proprietary Limited against Sand M Motor Repairs Pty Ltd 20 ) (number 3), NSWSC (Young J) 13 October 1987, the mere commencement of proceedings in the New South Wales ) Industrial Court is not necessarily sufficient to justify a stay of proceedings in an ordinary civil Court for the enforcement of a contract. Unfortunately, the authorities 30 supporting that proposition have not been supplied but the matter of justice would suggest that if both parties' legal obligations to each other inter se are capable of being varied by the decision of one Court, then another Court which is dealing with that same subject matter would. be best 40 advised to wait until the obligations of the parties are finally settled before it were to give judgment in respect of those obligations: Norris v Norris 1985 1 NSWLR 472. If that had been the end of the matter I should have granted so a stay in the present proceedings, but there are a number of adverse matters which cumulatively give reason for changing that view. The first and most important one js that an application of this nature has already been made and 60 3 ORDER -- 3 of 6 -- 200499 T2/HMH8 M/T 4311/99 (Derrington J) refused. That application was apparentIy primarily argued upon the basis that the parties were approaching conciliation proceedings in the New South Wales Court, but the learned Judge who refused a stay was correctly of the view that those conciliation proceedings were not likely to 10 be successful. Although it is suggested that the emphasis in the argument in respect of that application was the conciliation proceeding, it was still open to the present applicant to have gone further and sought a stay pending the final determination of the action in New South Wales, such as is now so~ght in this case. Whether that was actually asked for or not, and if it were asked for it must have been .refused, the situation plainly is that the present applicant was in a position to seek that remedy at the time and failed to do SOi or alternatively it was unsuccessful. Either way, it would now amount to an abuse of process to permit the matter to be further delayed by granting a stay at this stage. This difficulty is enlarged here because of the lateness of this application. The present action in this Court is at a stage where a certificate of readiness for trial should be signed because otherwise everything is ready to proceed. There is no valid reason advanced why the application has been allowed to wait until such a late stage before it has been brought. If the original application which had been refused was, in effect, confined to the question of the 4 ORDER 20 c c 30 c40 c 50 60 -- 4 of 6 -- ) ) J ) 200499 T2/HMH8 M/T 4311/99 (Derrington J) conciliation, then it would have been appropriate to have taken immediate further proceedings of the present nature once the conciliation proceedings had obviously failed. Consequently, the very substantial delay was allowed, superimposed upon the fact that an application was already 10 brought and refused in which this relief was or could have been sought, amounts to such a burden upon the success of the application as to tip the scales very substantially in favour of refusal. In those circumstances the application for the stay is dismissed. HIS HONOUR: I am reminded that the conciliation process was 20 . completed only in March this year which means that the 30 criticism I levelled at the delay in that respect was misplaced. That still does not detract from the delay that has still been permitted to have the matter of any stay based upon the merits that are advanced here determined at an earlier stage. That would have allowed for the avoidance of all the costs of preparation that have taken place in the intermediate period. The real point is that either the original application included an application on the present grounds or alternatively it should have been made at that time or soon thereafter on the very real prospects, that must have been known, that the conciliation would fail. In either case there has been untoward delay in that respect. 5 ORDER 40 50 60 -- 5 of 6 -- 200499 T2/HMH8 M/T 431~/99 (Derrington J) HIS HONOUR: In those circumstances the application for the stay is dismissed with costs. Now, is there another application for the certificate of readiness? HIS HONOUR: The application for dispensation of the signing of the certificate granted. No order as to costs. 6 ORDER 10 20 c c 30 c40 c 50 -- 6 of 6 --