Ankaro Pty Ltd T/As the Tile Shop v Centenary Homes
[2007] SADC 52
•8 May 2007
District Court of South Australia
(District Court Administrative and Disciplinary Division: Minor Civil Review)
ANKARO PTY LTD T/AS THE TILE SHOP v CENTENARY HOMES
[2007] SADC 52
Judgment of His Honour Judge Beazley (ex tempore)
8 May 2007
PROCEDURE
PRACTICE AND PROCEDURE - MAGISTRATES COURT - MINOR CIVIL ACTION - The Respondent sued the applicant in respect of a Minor Civil Action. The Applicant sought to introduce a counterclaim in respect of a sum which exceeds the jurisdiction of a Minor Civil Action. The Magistrate heard evidence relevant only to the proposed counterclaim but refused permission to the Applicant to plead the proposed counterclaim and entered judgment for the Respondent for a sum slightly in excess of the Minor Civil Action jurisdiction. The Applicant seeks to review the decision of the Magistrate to refuse permission to plead the counterclaim and enter judgment for the applicant - HELD - No jurisdiction in the District Court.
Magistrates Court Act 1991 ss3(2), 3(3), 3(4), 10AB, 38, 40, referred to.
Hollow v Maragozidis [2001] SASC 375; Spanos v B & K Paton Pty Ltd (In Liq) [1998] SASC 56879; Petracca v Fitzgerald [2002] SASC 97, considered.
ANKARO PTY LTD T/AS THE TILE SHOP v CENTENARY HOMES
[2007] SADC 52Preliminary
This matter came on for hearing before me this day purportedly as a Review of a Minor Civil action in the Magistrates Court.
It has a long and unfortunate history; now made worse by the issue of jurisdiction.
Background
The dispute arises out of a contract by way of invoice in the sum of $33,210.00 between the parties on 2 May 2005 for the supply by the Applicant of tiles for various design homes.
The action was commenced by the Respondent as a Minor Civil Claim in the Civil Division of the Magistrates Court on 21 March 2006. The Respondent immediately sought by way of mandatory injunction the delivery up of specified tiles.
The Respondent asserted that certain tiles had not been delivered, while the Applicant asserted that those tiles ordered by the respondent had been delivered.
On 27 March 2006, a Magistrate, during the hearing of the mandatory injunction, appears to have proceeded as if it were a trial of the action and concluded that the disputed tiles had not been delivered. He ordered that all such tiles be delivered by the Applicant or be seized by the bailiff.
Between 28 March 2006 and 11 April 2006 various boxes of tiles were delivered by the Applicant to the Respondent. The Applicant alleges that this resulted in an over delivery to the Respondent of tiles to the value of $10,890. The Respondent asserts that insufficient grey tiles were delivered and it was required to purchase additional tiles elsewhere at a price of $2,295.78.
Minor Civil Review 4 July 2007
On 1 June 2006 the Applicant sought a Minor Civil Review of the decision of the Magistrate to order the delivery of the tiles.
On 4 July 2006 a Judge of this Court allowed the Application for Review and remitted the matter back to the Magistrates Court for hearing before another Magistrate. The basis of that Order was that the Magistrate had denied the Applicant the opportunity to adduce proof that it had previously supplied all of the tiles which it was contractually obliged to deliver.
Magistrates Court
The trial of the action was listed for hearing on 29 January 2007.
The Applicant had in the interim determined that, in consequence of the Order of the Magistrate made on 27 March 2006, it had allegedly over supplied the Respondent with tiles to the value of $10,890. It did not however at that time seek to file a counterclaim for that sum. The Respondent similarly did not amend its Particulars of Claim to reflect its receipt of tiles following the 27 March 2006 Orders, nor to plead either the cost of additional tiles in the sum of $2,295.78 or any other expenses.
The Hearing 29 January 2007
The Magistrate had before him an apparent Minor Civil Claim for $6,000 by the Respondent. The Applicant sought to tender a proposed counterclaim in the sum of $10,890.
The Magistrate could have directed that that counterclaim be separately tried.
Section 3(3) of the Magistrates Court Act provides:
“If a claim that is not within one of the classes referred to ….. is introduced into a minor civil action, the action ceases to be a minor civil action unless the court orders that the subsequent claim be tried separately”.
There is some confusion about the way in which the matter proceeded before the Learned Magistrate. His Honour intimated that he would not allow a counterclaim to be considered. The consequence would be that this would leave a claim only for the additional tiles purchased elsewhere and any alleged costs. The Learned Magistrate however only appeared to have the unamended summons before him. He heard witnesses from both sides as to how many tiles were allegedly delivered. This of course was the very evidence which the Applicant had sought to be heard on the counterclaim.
The Learned Magistrate delivered Ex Tempore Reasons in which he refused leave to file a counterclaim and gave judgment for the Respondent in the sum of $6,006 in addition to costs. It is not apparent from the transcript as to the basis of the judgment sum. It seems that at some stage the Respondent handed to the Court a list of expenses totalling $6,006 (which sum did not include interest), and which therefore slightly exceeded the limit of a minor civil action.
The subject Minor Civil Review
By application dated 14 February 2007 the Applicant sought a Review of the Decision by the Learned Magistrate to refuse leave to file a counterclaim in respect of those tiles delivered pursuant to the Order of the Court on 27 March 2006, and with respect to the judgment in the sum of $6,006.
Jurisdiction
In my opinion this Court does not have jurisdiction to hear a Review of the Decision of the Learned Magistrate to refuse leave to file a counterclaim. I do not need to consider whether the judgment in the sum of $6,006 itself takes the matter from being a Minor Civil Action. There was certainly no consent of the parties that a claim in excess of $6,000 ought proceed as a Minor Civil Action. See Hollow v Maragozidis [2001] SASC 375, Spanos v B & K Paton Pty Ltd (In Liq) [1998] SASC S 6879, and Petracca v Fitzgerald [2002] SASC 97.
The nature of both the claim and the proposed counterclaim had changed after the mandatory injunction was granted on 27 March 2006, and the ordered tiles delivered.
There is no question of now separating the relief sought with respect to the refusal to permit the counterclaim to be heard. The parties concede that the claim and proposed counterclaim are inextricably entwined. It is trite that this Court’s jurisdiction is limited to a Review of Minor Civil Actions.
In my opinion the right of appeal in such matters is to the Supreme Court. I explained that right to the Applicant and the Respondent. See Spanos v B & K Paton Pty Ltd (In Liq) [1998] SASC S 6879 at [11] per Perry J.
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