Brimbank Automotive Pty Ltd v Murphy - [2009] VSC 26

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

---

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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Brimbank Automotive Pty Ltd v Murphy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 26
Decision Date: 10 February 2009

CaseChat Overview and Summary

Brimbank Automotive Pty Ltd, the plaintiff, sought judicial review of orders made by the Magistrates’ Court regarding an application for an adjournment of a trial against Murphy, the defendant. The dispute pertained to a motor vehicle accident, with Brimbank Automotive claiming damages for injuries sustained by Murphy in a collision involving one of the plaintiff’s vehicles. The case was brought to the court to review the Magistrates’ Court’s refusal to grant an adjournment, which Brimbank Automotive argued was necessary to prepare its case adequately.

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.

Orders