COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CWDS
  Federal Court - jurisdiction - small case - allegation of breach of implied
warranties - allegation of s.52 breach added - relevance of costs - claim
struck out.
  Trade Practices Act, 1974, s.52, Part V. Div. 2

HRNG
BRISBANE
#DATE 26:3:1986
  Counsel for the applicants Mr. W. Sofronoff instructed by Peter J. Davis &
Associates
 Counsel for the respondent Mr. R. Traves instructed by Feez Ruthing.

ORDER
  The statement of claim as amended be struck out.
  The costs of and incidental to the application for directions, as to the
proceedings on 25 March 1986 only, be taxed and paid by the applicants to the
respondent.

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

JUDGE1
  As originally formulated, this was a claim for damages alleging breaches of
warranties said to be implied by provisions of the Trade Practices Act, in
particular s.71 and following. It was pointed out at a directions hearing that
the court has jurisdiction only in respect of contraventions of the Act, and
that breaches of the implied terms were not properly so described, and
reference was made to the decision of Rogers J. in Zalai v. Col Crawford
(Retail) Pty. Ltd. (1980) 32 ALR 187 that of Brennan J. in Arturi v. Zupps
Motors Pty. Ltd. (1980) 33 ALR 243, and that of Toohey J. in Polygardy v.
Australian Guarantee Corporation Ltd (1981) 34 ALR 391.
2.  Counsel for the applicants then asked for an adjournment, and when the
matter came on again, conceded that the claim as initially framed was beyond
the court's jurisdiction. He produced an amended statement of claim which
added an allegation of breach of s. 52 of the Trade Practices Act, that
allegation being in substance that the respondent had represented to the
applicants that the goods, the subject of the claim, namely a refrigerator,
were suitable for their intended purpose.
3.  Counsel for the applicants said that the statement of claim, in its
amended form, did not require leave by reason of the provisions of 0.13 r.
13(1) which reads :

    "A party may, without leave, amend any pleading of
    his once at any time before the pleadings are
    closed."

4.  Nevertheless, it seems clear that the court must be able to determine
whether the amendment is one which should properly be made and counsel for the
respondent asked that I disallow the amendment which I presumably should do,
if I accede to his suggestion, by striking the statement of claim out.
5.  I have found consideration of the question one of some difficulty because,
although the case is a small one concerning goods of value only about $5,000,
counsel for the applicants says that the case was brought here to get a
quicker trial and for other reasons which I accept are bona fide.
6.  One approach which has, I think, been suggested, is that the bringing of
small cases of this sort might be discouraged by making special orders for
costs. With all respect to those who hold that view, there must be some
uncertainty as to whether it is right to penalize a litigant in costs for
exercising a legal right to bring a proceeding in a court to which the law
allows him access. However that may be, the question of costs in such a small
case must loom large in determining by "impression and practical judgment . .
. whether it is appropriate and convenient that the whole controversy be
determined by the exercise of federal judicial power": Fencott v. Muller
(1983) 46 ALR 41 at p 69.
7.  As explained by the majority of the judges in that case, the notion of
accrued jurisdiction depends in part on questions of convenience, and it has
to be conceded that the factor relied on by counsel for the applicants, namely
speed, tells in his favour. However, it is my view that the advantage gained
in that way is more than counter-balanced by the likelihood that the total
costs of litigating the matter here, if it is fought out, are likely to be
several times the sum in dispute.
8.  I also take into account the fact that so far from the non-federal claim
being, as a matter of history, an appendage to a dispute in the area of
federal law, the reverse is the case. Here, it appears that the matter was
originally brought to this court in error and the federal claim has been added
in an attempt to bring the matter within jurisdiction.
9.  The scope of the controversy is to be ascertained, on the authority of the
same judgment at p. 68, at least in part by reference to the conduct of the
proceedings, which I take to encompass questions such as the sequence in which
the claims have been raised. Although the notion that the ambit of the
jurisdiction of this court be defined by matters of "impression and practical
judgment" has been criticized - see for example 58 A.L.J. 440 - it seems clear
that the court is not only entitled, but obliged, by virtue of the decision in
Fencott v. Muller, to have regard to such matters. On that basis, there seems
little doubt that the court should decline jurisdiction in this case, and I do
so. It seems to me that the appropriate way to do so is to strike out the
statement of claim, and that will be done. The applicants, of course, will
have to pay the costs.
10.  I had intended to say something about the relevance of this incident as
an illustration of the necessity to take some legislative steps with respect
to the jurisdiction of this court, but have come to the conclusion that any
such comment must be superfluous. The order of the court will therefore be
that the statement of claim as amended be struck out, with the costs of the
directions hearing (including the costs of both yesterday's proceedings) to be
paid by the applicants to the respondent; that there will be no costs of
today's hearing.