BIVONE v MUSOLINO

[2010] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

BIVONE v MUSOLINO

[2010] SASC 180

Judgment of The Honourable Justice Duggan

21 June 2010

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - ORDERS GENERALLY

Appeal against decision of Magistrate to strike out claim – appellant filed claim against respondent to recover monies allegedly advanced by way of loans – respondent filed defence alleging money received comprised wages earned – respondent filed application to strike out claim for want of jurisdiction – application filed immediately before conciliation conference and listed for hearing at later date – appellant failed to attend conciliation conference – Magistrate allowed application despite absence of appellant and the fact that appellant not yet served with application – whether Magistrate erred in striking out claim – whether Magistrates Court had jurisdiction to determine claim.

HELD:  Appeal allowed – defence that the money comprised wages earned could not change nature of appellant's claim – Magistrate erred in finding that the Magistrates Court lacked jurisdiction to determine the claim – inappropriate to strike out action when application to strike out listed for hearing on another date and not served on appellant – matter remitted to Magistrates Court.

Fair Work Act 1994 (SA) s 14, referred to.

BIVONE v MUSOLINO
[2010] SASC 180

Magistrates Appeal:  Civil

1. DUGGAN J:         This is an appeal against the decision of a Magistrate to strike out a claim filed by the appellant against the respondent in the Elizabeth Magistrates Court.

2. The summons was filed on 22 September 2009.  According to the claim, the appellant advanced sums of money to the respondent by way of loans during the period 30 October 2003 to 21 July 2005.  It was claimed that the loans totalled $51,000 and that no repayment of principal was made.  The appellant contended that payments of interest were made up to and including the payment for July 2007, but no payments were made thereafter.

3. The respondent filed a defence on 6 October 2009.  The respondent acknowledged in the defence that the sum of $51,000 was received by him from the appellant.  However, he claimed that the monies were paid to him for wages earned while employed by the appellant, or the appellant’s parents, between January 2000 and February 2003.  The appellant denies that the monies represented wages due to respondent.

4. At a hearing in the Magistrates Court held on 13 November 2009 an order was made for mutual discovery.  The matter was then adjourned to a directions hearing to be held on 22 January 2010.  At the hearing on that date the matter was adjourned to a conciliation conference to be held on 26 February 2010.

5. Counsel for the appellant appeared at the hearings on 13 November 2009 and 22 January 2010.  However, he failed to attend the conciliation conference on 26 February 2010.  This was due to computer software problems which resulted in a failure to record the date for the conciliation conference in his diary.

6. On the morning of the hearing on 26 February 2010, the solicitor for the respondent filed an application in the Magistrates Court Registry seeking an order to strike out the appellant’s claim for want of jurisdiction.  In the supporting affidavit the respondent’s solicitor stated that the respondent acknowledged receipt of the sum of $51,000 but claimed that the monies were due to him for wages.  It was further claimed in the affidavit that the Magistrates Court did not have jurisdiction to determine the matter in light of the respondent’s claim that the monies were not loaned to him but constituted wages.  The Registry set the application down for hearing on 12 March 2010.

7. The matter was left in the list on 26 February 2010 and eventually called on during the morning.  The application to strike out was brought to the attention of the Magistrate.

8. The Magistrate then struck out the appellant’s claim.  There is a note on the Magistrates Court file:

   Being satisfied that the plaintiff’s claim discloses a claim for underpayment of wages it appears that this claim has been brought in the wrong jurisdiction.  HH orders that the claim be struck out.  Order plaintiff to pay the defendant’s costs fixed at $2,500 within 30 days of this date.

9. The Magistrate based his ruling on his understanding that the appellant’s pleadings disclosed a claim for underpayment of wages.  However, the claim was for monies lent.  The respondent’s answer to the claim was that the monies had been paid to him on account of wages.  This claim in the defence cannot have the effect of altering the nature of the appellant’s claim.

10. It may be that the Magistrate had in mind the jurisdiction conferred on the Industrial Court to hear and determine monetary claims for sums due to an employee in the circumstances set out in s 14 of the Fair Work Act 1994 (SA). However, this was not such a claim and, even if it was, it was not argued before me that the Magistrates Court did not have jurisdiction to hear it as a result of the Industrial Court being vested with that jurisdiction.

11. In any event, it was clearly inappropriate to strike out the action in the absence of the appellant or his counsel on an application which was listed for hearing on a future date and had not been served on the appellant.

12. The appeal will be allowed, the orders of the Magistrate set aside and the matter remitted to the Magistrates Court list.