Australian and New Zealand Banking Group Limited v Dixon

[1989] TASSC 14

Serial No 7/1989
List "A"

CITATION:  Australian and New Zealand Banking Group Limited v Dixon [1989] TASSC 14; (1989) Tas R 19; A7/1989

PARTIES:AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

v
  DIXON

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 153/1988
DELIVERED ON:  22 February 1989
JUDGMENT OF:  Crawford J

Judgment Number:  A7/1989
Number of paragraphs:  14

Serial No 7/1989
List "A"
File No LCA 153/1988

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED v DIXON

REASONS FOR JUDGMENT  CRAWFORD J

22 February 1989

1. The matter of law to be determined in this appeal is whether a Commissioner of the Court of Requests has jurisdiction to make an order for summary judgment.

1. By a plaint filed in the Court of Requests at Hobart on 20 June 1988 the appellant sued the respondents, Mr. and Mrs. Dixon, for $3,241.42 and interest allegedly due under a loan agreement and for $906.17 and interest allegedly due under a current account agreement. The Defence generally denied the allegations in the Grounds and Particulars of Claim. By an interlocutory application dated 29 September 1988 the appellant applied to amend the Grounds and Particulars of Claim and sought an order:

"That final judgment in this action be entered against the Defendants for $4,486.98 together with interest at the rate of $2.14 per day from the 23rd day of September 1988 until judgment and costs to be taxed."

The application was supported by two affidavits.

1. The learned Commissioner held that he did not have jurisdiction to entertain an application for summary judgment.

1. This court has power to give summary judgment under O15 of the Rules of the Supreme Court. The Local Courts Act 1896 and its Rules of Practice make no mention of the matter.

1. Section 18 of the Local Courts Act 1896 provides:

   "18 — (1)        A commissioner in chambers shall have and may exercise in respect of any action or proceeding under this Act within the jurisdiction of the court of which he is commissioner any of the powers which, if such action or proceeding were pending in the Supreme Court, a judge of the Supreme Court might exercise in respect thereof in chambers.

   (2)       Any order, direction, declaration, or act made, given, or done by a commissioner in the exercise of the powers conferred by this section may be reversed, discharged, or altered by a judge of the Supreme Court sitting in chambers."

2. Section 138 provides:

   "138 — (1)      The general rules of practice contained in Schedule V shall regulate the proceedings in the courts as to all matters to which they extend, and the judges of the Supreme Court may alter or annul any such rules of practice, and make further or additional rules for carrying this Act into effect.

   (1A)     ............................................

   (2)       In any case not expressly provided for in this Act or the rules of practice, the general principles of practice in the Supreme Court shall be adopted and applied to actions and proceedings under this Act."

3. In Mason v Guiler [1959] Tas SR 152 it was held by Cox AJ that s18 gave power to commissioners to give leave for the issue of third party proceedings notwithstanding that the Local Courts Act 1896 and its Rules of Practice were silent on the subject. In relation to s138 his Honour said at pp153 and 154:

   "In my opinion s138 does not avail to create, under the guise of calling it a principle of practice, entirely new rights not contemplated by statute between the parties or third persons. I think it operates only to enable gaps in the Act or rules to be filled, and practice methods used, to bring about ends contemplated by the statute and always within the framework of the statute. It can be perhaps put another way by saying the section does not go to jurisdiction.

   There is no specific reference in the Local Courts Act 1896 to third party procedure. There is, of course, such a reference in the Supreme Court Civil Procedure Act 1932 (s 10(3)), and then the procedure to be followed is laid down in the Rules. If the matter stopped there I would say there was no foundation upon which to base the importation of the Supreme Court third party rules. But I do not think that is the end of the matter."

   Cox AJ then turned to s18(1) at p154:

   "Now, if this apparently properly constituted action within the jurisdiction of the Court of Requests were pending in the Supreme Court, a judge in chambers clearly would have power to give leave for the issue of a third–party notice, and in my view, if s 18 means anything, it means that the commissioner has power to do so in this action.

   That then provides the statutory foundation for the importation of the procedural rules under s 138(2). I cannot think that Parliament having given such power to a commissioner would have left it impossible to implement for lack of practice, principles, or rules, call them what you will.

   The only possible way, short of inventing a totally unauthorised procedure, of implementing s 18 so far as it relates to third–party notices is to apply the Rules of the Supreme Court. I think this is one of the very cases to which s 138(2) is intended to apply."

1. Mason v Guiler (supra) is directly in point and I propose to follow it. The action appears to be one within the jurisdiction of the Court of Requests. It follows, in the terms of s18(1), that the learned Commissioner had and might have exercised "any of the powers which, if such action or proceeding were pending in the Supreme Court, a judge of the Supreme Court might exercise in respect thereof in chambers." One of such powers is to give a summary judgment. For the same reasons in Bien v City of Launceston [1976] Tas SR 57 it was held that s18(1) authorised an application to dismiss an action in the Court of Requests for failure to answer interrogatories, notwithstanding that the Local Courts Act 1896 did not provide for such an application in the circumstances of that case.

1. Section 18(1) was also applied by the Master in Maney v Cornwall Coal Company 62/1965 when he held that it enabled a commissioner to direct the preliminary trial of a point of law as provided not in the Local Courts Act 1896, but in O28, r2 of the Rules of Practice of this court.

1. The learned Commissioner addressed his mind to what was said by Cox AJ in Mason v Guiler (supra) in relation to the effect of s138, and he concentrated on that, instead of on what was said in relation to s18(1). He said that there were no "gaps" in the legislation so far as obtaining judgment was concerned, pointing to s45A (judgment for the defendant where no reply is filed), s46 (judgment where no defence is filed), s49 (judgment on confession of debt), s50 (judgment following agreement as to the amount of debt), and s50A (judgment by consent). But the reference to "gaps" by Cox AJ was made in the context of s138(2) and not of s18(1). The learned Commissioner said that the "Court would have to assume a jurisdiction it does not have to enable the plaintiff to have recourse to the Rules of the Supreme Court and proceed with the application" overlooking that s18 expressly vested in him the powers of a judge sitting in chambers.

1. Originally s17 of the Local Courts Act 1896 gave the Supreme Court jurisdiction to determine certain actions and proceedings in accordance with the Act and s18 gave a judge in chambers the powers which he could exercise in chambers in an action brought in the Supreme Court in its ordinary common law jurisdiction. If those sections remained in their original form, s18 would clearly authorise an order for summary judgment. This court's jurisdiction to determine actions and proceedings in accordance with the Act was removed by the Local Courts Act 1934 and by the same Act, s18 was replaced by its present form, that is to say the powers that a judge of this court might have exercised in chambers, in an action or proceeding pending in this court, were bestowed on commissioners of the Court of Requests. The power to order summary judgment has therefore, since 1934 been vested in commissioners.

1. It was submitted for the respondents that O15 cannot apply to proceedings in the Court of Requests because r.1 authorises the making of the application for summary judgment after service of a statement of claim and entry of appearance and r6(2) authorises a judge to direct that the claim be tried by the Master. In the Court of Requests, statements of claim and appearances are not used and the Master, it was argued, could not try an action under the Local Courts Act 1896. But these are problems which s138(2) of the Act resolves by providing that "the general principles of practice in the Supreme Court shall be adopted and applied to actions and proceedings under this Act."

1. It may be that cases will occur where s18(1) will need to be restricted in its interpretation in some way, but this is not such a case. Mason v Guiler (supra) and Bien v City of Launceston (supra) clearly apply and the learned Commissioner should have held that he had power to give summary judgment.

1. Section 123(1) of the Local Courts Act 1896 provides that on the hearing of an appeal the judge may either order a new trial (that is not appropriate) or order judgment to be entered for either party. It does not appear that I can simply uphold the appeal and remit the matter back to a commissioner for determination. See also O76, r54 (particularly subr(4)), Tasmanian Woolgrowers’ Agency Company Ltd v Blackett and Another (1916) 12 Tas LR 61 at 63, Kampus v Universal Guarantee Pty Ltd 90/1967 (noted in [1967] Tas SR (NC) 61) and Rimer v Cook 441975. From the comments made at the bottom of the first page of the learned Commissioner's reasons for dismissing the application it appears that he did not deal with the application to amend the Grounds and Particulars of Claim. The question arises as to what form the Grounds and Particulars of Claim should be in when I determine the application for summary judgment. I will hear counsel as to these matters.