| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5890 of 2008
BETWEEN
| BRIMBANK AUTOMOTIVE PTY LTD (ACN 088 181 257) | First Plaintiff |
| and | |
| JEFFREY MOLONEY | Second Plaintiff |
| and | |
| PATRICIA MURPHY | First Defendant |
| and | |
| MAGISTRATES' COURT OF VICTORIA | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2009 | |
DATE OF JUDGMENT: | 10 February 2009 | |
CASE MAY BE CITED AS: | Brimbank Automotive Pty Ltd & Anor v Murphy & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 26 | |
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PRACTICE AND PROCEDURE – Judicial review of orders made by Magistrates’ Court - Application for adjournment of trial – Circumstances in which certiorari will be granted in respect of a refusal of an adjournment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Catlin | Griffin Law Firm |
| For the First Named Defendant | Mr R M J Lombardi | John Micallef & Co |
HIS HONOUR:
The plaintiffs seek relief in the nature of certiorari to quash orders made by the Magistrates’ Court at Sunshine on 28 February 2008 and 4 March 2008. In those proceedings the first named plaintiff, Brimbank Automotive Pty Ltd (“Brimbank”), and the second plaintiff, Jeffrey Moloney (“Moloney”), were defendants to a claim brought against them by the first defendant to these proceedings, Patricia Murphy (“Murphy”).
Moloney is a director of Brimbank. It was common ground in the Magistrates’ Court proceedings that, before 2007, there was an agreement between Brimbank and Murphy, whereby the latter would provide bookkeeping services to Brimbank. That agreement came to an end in March 2007 in circumstances which were controversial before the Magistrates’ Court, but which are irrelevant to the current application. In July 2007, Murphy commenced the proceedings in the Magistrates’ Court against Brimbank and Moloney. She claimed that by an agreement made between herself and Brimbank in 2004, she agreed to provide professional bookkeeping services to Brimbank. In July 2005, she agreed with Brimbank that she would pay monies to various creditors of Brimbank by using a Commonwealth Bank credit card issued to her, and that Brimbank would reimburse her for any money so paid on its behalf, together with any additional interest charged by the bank as a consequence of those payments. Pursuant to that agreement, the plaintiff alleged that she made various payments to creditors of Brimbank between July 2005 and March 2007. In the Magistrates’ Court proceeding she claimed that, under that agreement, Brimbank owed her the sum of $23,776.13. Alternatively, Murphy claimed that, in contravention of s 52 of the Trade Practices Act and s 9 of the Fair Trading Act, Brimbank and Murphy had falsely represented to her that Brimbank would reimburse her for any payments made to creditors on behalf of Brimbank.
In August 2007, Brimbank and Moloney delivered a notice of defence in the Magistrates’ Court. On the same day, Brimbank also served a counterclaim on Murphy. By that counterclaim, Brimbank alleged that, in breach of the terms of the agreement between Murphy and itself, Murphy paid to…
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- Case
- [2009] VSC 26
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Magistrates’ Court’s refusal to grant an adjournment was a matter warranting judicial review, specifically under the scope of certiorari. The court had to assess if the refusal to adjourn was an error of law or if the Magistrates’ Court exercised its discretion in a manner that could be considered unreasonable or unjust. Furthermore, the court needed to determine if the refusal caused such substantial injustice that it warranted intervention by way of certiorari.
The court held that the refusal to grant an adjournment could be subject to judicial review if it was shown that the Magistrates’ Court made an error of law or acted in a manner that was unjust or otherwise outside the scope of its discretion. In this case, the court found that the Magistrates’ Court had exercised its discretion appropriately, taking into account the timing of the application and the reasonableness of the request. The court concluded that the Magistrates’ Court did not err in law and that there was no basis for granting certiorari as the refusal to adjourn did not result in substantial injustice. Therefore, the application for judicial review was dismissed.
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