Farrow Mortgage Services Pty Ltd v Emanuele [1995] QSC 204

IN THE SUPREME COURT OF QUEENSLAND Brisbane WRT. No. 1275 of 1994 Before the Hon. Justice Mackenzie [Farrow Mortgage Services P/L v. G. Emanuele] BETWEEN: FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) (ACN 006 125 757) Plaintiff AND: GIUSEPPE EMANUELE Defendant JUDGMENT - MACKENZIE J. Judgment delivered 25/08/1995 CATCHWORDS: PRACTICE - O.66 r.7 - power of Registrar to sign consent orders - attempted transfer of proceeding pursuant to cross-vesting legislation vesting discretion in Court - whether within power of Registrar to exercise discretion. Solicitors: Carter Newell for applicant Hearing date: 15 August 1995 -- 1 of 3 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane WRT. No. 1275 of 1994 Before the Hon. Justice Mackenzie [Farrow Mortgage Services P/L v. G. Emanuele] BETWEEN: FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) (ACN 006 125 757) Plaintiff AND: GIUSEPPE EMANUELE Defendant JUDGMENT - MACKENZIE J. Judgment Delivered 25 August 1995 In this matter the plaintiff and the defendant signed a consent document purporting to be under O.66 r.7 and requested a Deputy Registrar to seal a consent order that it was appropriate that the relevant proceeding be determined by the Supreme Court of South Australia and transferring it pursuant to s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 to the Supreme Court of South Australia. The Deputy Registrar who heard the matter decided that he did not have jurisdiction and refused the application. A summons has been taken out seeking an order that the registrar be directed to sign orders in terms of the consent of the parties filed on 21 July 1995. Order 66 r.7 is in the following terms:- "7. Consent Orders. Upon the written consent of the parties or their solicitors, the Registrar may draw up, sign and seal an order in any case in which, in his opinion, the -- 2 of 3 -- 2 Court or a Judge would have made such an order upon consent of parties. Every such order shall state that it is made by consent, and shall be of the same force and validity as if it had been made by the Court or a Judge. Every such consent shall be filed." Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act provides a procedure for transferring a proceeding pending in the Supreme Court to the Supreme Court of another State or of a Territory. The discretion in s.5(2) is vested in the Court and is subject to a finding that it is "more appropriate" that the relevant proceeding be determined by the other Supreme Court or it is "otherwise in the interest of justice" that it be so determined. The application which is based on the premise that the registrar may exercise that discretion and that he be directed to sign orders based solely on the consent of the parties is misconceived. There is no material before me bearing on the issues to be taken into account in exercising the discretion other than the consent. In the interests of saving costs I am prepared to adjourn the summons rather than dismiss it as in addition to the order directing the Registrar to act on the consent, the summons also seeks such further other order as to the Court shall seem meet. The order therefore is that the summons is adjourned to a date to be fixed. I make no order as to costs. -- 3 of 3 --