Bruscino v Carbone - [2004] NSWSC 589

CITATION: Bruscino & Anor v Carbone [2004] NSWSC 589

HEARING DATE(S): 21 June 2004

JUDGMENT DATE:
20 July 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The orders of Magistrate A A Spence dated 5 and 14 April 2004 are affirmed; (3) The amended summons filed 21 June 2004 is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed; (5) The stay of execution of the judgment as ordered by Kirby J on 3 May 2004 is dissolved.

CATCHWORDS: Appeal decisions of Local Court Magistrate - stay of proceedings refused

LEGISLATION CITED: District Court Act - s 52
Legal Profession Act (1987) (NSW)
Local Court (Civil Claims) Act 1970 (NSW) - s 32, s 53(1)
Local Court (Civil Claims) Rules - r 5(1)

CASES CITED: Fraser Credits Pty Ltd v Osterber-Olsen (1978) 1 NSWLR 121
Martin v O'Reilly (1914) 12 SR NSW 277
Minerals Corporation Ltd v Anthony Norman Abbot t/as Piper Alderman Lawyers [2004] NSWSC 246
Ryan v Hansen t/as Hansens Solicitors [2002] NSWSC 354; 49 NSWLR 184

PARTIES :

Mario Buscino & Josephine Bruscino
(Plaintiffs)
Domenic Carbone
(Defendant)

FILE NUMBER(S): SC 11071/2004

COUNSEL:
Mr P Newton
(Plaintiffs)
Mr J R Gormly
(Defendant)

SOLICITORS:
Mr Ross Ward,
Kemp Strang
(Plaintiffs)
Mr Domenci Carbone,
Carbone & Associates
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 959/2003

LOWER COURT
JUDICIAL OFFICER : Magistrate AA Spence

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 20 JULY 2004
11071/2004 - MARIO BRUSCINO & ANOR v

DOMENIC CARBONE

JUDGMENT (Appeal decisions of Local Court

Magistrate - stay of proceedings - refused)

1 MASTER: By amended summons filed 21 June 2004 the plaintiffs seeks: firstly, to appeal the decisions of Magistrate AA Spence made on 5 and 14 April 2004 in matter No. 959/2003; secondly, an order that the decisions be set aside; and thirdly, an order that the judgment in the Local Court be stayed pending a judgment of the District Court of New South Wales proceedings No. 1179/2004. The plaintiffs are Mario Bruscino and Josephine Bruscino. They relied on the affidavit of Ross Alexander Ward sworn 16 April 2004. The defendant is Domenic Carbone. He relied upon his affidavits sworn 27 April 2004 and 18 June 2004. On 3 May 2004 Kirby J granted a stay of proceedings in the Local Court and I have extended this stay until judgment is delivered.

2 The matter has a somewhat complicated history and it has been helpfully summarised by Kirby J except to say that the plaintiffs now appeal in relation to two applications for stays of proceedings namely those on 5 and 14 April 2004.

3 On 2 June 1999 Austech Homes filed proceedings against Mr and Mrs Bruscino in the Fair Trading Tribunal (FTT) (as it then was). In those proceedings Dominic Carbone was their legal representative. The proceedings were ultimately determined on 12 February 2002 by the Tribunal ordering Mr and Mrs…

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.

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Details

Case: [2004] NSWSC 589
Decision Date: 20 July 2004

CaseChat Overview and Summary

In the case of Bruscino v Carbone, the matter was brought before the Court of Appeal in New South Wales. The dispute involved an appeal against decisions made by a Local Court Magistrate in relation to a motor vehicle accident. The appellant, Bruscino, sought to appeal the magistrate's orders, including a stay of proceedings in a related proceeding. The respondent, Carbone, opposed the appeal, arguing that the magistrate's decisions were correct and should be upheld.

The primary legal issues before the court were whether the Local Court Magistrate had erred in making the decisions in question and whether the appeal against those decisions should be allowed. Specifically, the court needed to determine if the magistrate's decision to stay the proceedings was appropriate and if the appeal against that decision was valid. The court also considered the broader implications of the appeal on the efficiency and fairness of the judicial process.

The court found that the Local Court Magistrate had not erred in making the decisions in question. The reasoning of the magistrate was sound, and the appeal against the decisions was without merit. The court held that the stay of proceedings was correctly granted and that the appeal against this decision should be dismissed. The court further determined that allowing the appeal would not serve the interests of justice and would unnecessarily prolong the proceedings. Consequently, the appeal was dismissed, and the magistrate's decisions were upheld.

Orders