Bulcraig v Hunt - [2010] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BULCRAIG & ANOR -v- HUNT & ORS [2010] WADC 99

CORAM: DAVIS DCJ

HEARD: 31 MAY 2010

DELIVERED : 29 JUNE 2010

FILE NO/S: CIVO 46 of 2010

MATTER :IN THE MATTER of s 39 of the Magistrates Court Act 2004

BETWEEN: ANTHONY FRASER BULCRAIG
REBECCA ANNE BULCRAIG
Claimants
AND
JOSEPH KENNETH HUNT
IRINA VICTORIA HUNT
First Defendants
DOWNSOUTH (WA) PTY LTD
Second Defendant
WILCOX & ASSOCIATES PTY LTD
Third Defendant

Catchwords:

Application to transfer matter from Magistrates Court to District Court - No jurisdiction of the Magistrates Court to order relief under s 77 of the Fair Trading Act 1987 - Registry from which the matter should be conducted

Legislation:

Fair Trading Act WA 1987, s 77
Magistrates Court (Civil Proceedings) Act 2004, s 6, s 9, s 11, s 39

Result:

Application granted
Matter transferred to the District Court, Bunbury Registry

Representation:

Counsel:

Claimants:     Mr A J Prentice
First Defendants           :     Ms E C Hensler
Second Defendant        :     Mr H M O'Sullivan
Third Defendant           :     Mr A Vucak

Solicitors:

Claimants:     D F Beere
First Defendants           :     Jackson McDonald
Second Defendant        :     SRB Legal
Third Defendant           :     Jarman McKenna

Case(s) referred to in judgment(s):

Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488
Eminent Holdings Pty Ltd & Ors v Ashbolt & Anor [2002] WADC 151
Goodwin v Phillips (1908) 7 CLR 1
Murcia & Associates (a firm) v Grey (2001) 25 WAR 209
Rapoff v Doropoulos (1990) 3 WAR 451
Wandt Pty Ltd v BB Hotel Pty Ltd & Anor [2004] WADC 239

DAVIS DCJ: Until September 2007 Joseph and Irina Hunt, the applicants in this matter, operated a café from premises which they owned on Bussell Highway, Witchcliffe, a town south of Margaret River in Western Australia. In early 2007 the Hunts decided to sell the café business and appointed Downsouth (WA) Pty Ltd, as their agent to sell. They also appointed some architects, Wilcox & Associates, to make plans for some improvements to the premises and application to the Shire for development approval.
In September 2007 the Hunts sold the café business to Mr and Mrs Bulcraig. An agreement was entered into for the sale of the business, and Mr and Mrs Bulcraig also entered into a lease for the premises which the Hunts still owned.
In 2008, Mr and Mrs Bulcraig commenced proceedings against the Hunts, claiming damages pursuant to the Fair Trading Act 1987, as well as an order declaring that the whole of the agreement to purchase the business and the lease were void ab initio, pursuant to s 77(3)(a) of the Fair Trading Act, and an order that the Hunts refund the purchase price of the business and all rent and outgoings paid for the lease of the premises, pursuant to s 77(3)(d) of the Fair Trading Act. These proceedings were issued out of the Busselton Registry of the Magistrates Court of Western Australia.
In December 2009, Downsouth (WA) Pty Ltd and Wilcox & Associates were joined as second and third defendants to the action.
The Hunts have made application, pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004, to transfer the proceedings out of the Busselton Registry of the Magistrates Court and to the Perth Registry of the District Court of Western Australia. The application was based on two grounds. The first was that proposed amendments to the Hunts' counterclaim to add, to their existing claim for outstanding rent, a claim for damages for breach of the lease and for loss of the benefit of the lease would mean that the counterclaim would exceed the Magistrates Court's jurisdiction. The second ground was that the relief sought by Mr and Mrs Bulcraig under s 77 of the Fair Trading Act exceeds the Magistrates Court's jurisdiction.
This application to transfer the proceedings came on for hearing before me. At the hearing, only Mr and Mrs Bulcraig opposed the application to transfer the proceedings and the issue regarding jurisdiction was confined to Mr and Mrs Bulcraig's claim. The total of the counterclaim might exceed the monetary limit of the Magistrates Court jurisdiction, which is currently $75,000, but there are two or more claims in the counterclaim, each of which could be the subject of a separate claim within the Magistrates Court's jurisdiction. Thus, although the total counterclaim might be more than the jurisdictional limit, as provided in s 9(3) of the Magistrates Court (Civil Proceedings) Act the Magistrates Court has the jurisdiction to resolve that counterclaim. Furthermore, Mr and Mrs Bulcraig had also indicated, through their solicitors, that they would consent to the Magistrates Court dealing with the counterclaim to the extent that it does exceed the jurisdictional limit.
The remaining issue to determine regarding jurisdiction is, therefore, as provided in s 39(4) of the Magistrates Court (Civil Proceedings) Act, whether all or part of Mr and Mrs Bulcraig's claim is within the District Court's jurisdiction and involves a claim or an issue that is outside the Magistrates Court's jurisdiction. I shall refer to this as the jurisdictional issue.
Mr and Mrs Bulcraig, if the matter was to be transferred, also opposed the transfer to the Perth Registry, preferring it to be dealt with in Busselton. All the other parties indicated their preference that the matter be transferred to Perth. There was no material before me on which I could determine this issue, which I will refer to as the geographical issue. I directed that the parties file and serve affidavits addressing this, with any affidavit from Mr and Mrs Bulcraig filed by 11 June 2010 and the other parties by 22 June 2010.
Upon filing an affidavit relating to the geographical issue in this matter, the solicitors for Mr and Mrs Bulcraig advised by letter dated 3 June 2010 that the jurisdictional issue was conceded. That concession was, in my view, correctly made. Since the jurisdictional issue was argued before me and this is a matter which I have reviewed, I will still provide my reasons on this, as well as addressing the geographical issue.

The jurisdictional issue – jurisdiction of the Magistrates Court to make orders under s 77 of the Fair Trading Act

The Magistrates Court, being a statutory court, must find its jurisdiction within the express words of the legislation. The Magistrates Court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act.
A claim for damages under the provisions of either the Fair Trading Act or the Trade Practices Act can be brought and dealt with in the Magistrates Court: see s 6(1)(a) of the Magistrates Court (Civil Proceedings) Act. The Magistrates Court also has jurisdiction in equitable claims, but only "where the only relief claimed" is the recovery of an amount of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the jurisdictional limit: s 6(1)(b). There is no general equitable jurisdiction.
Section 11 of the Magistrates Court (Civil Proceedings) Act provides that the Magistrates Court has such powers as are incidental to and necessary for the exercise of the jurisdiction conferred on it by s 6 and may grant any remedy or relief in respect of a claim within its jurisdiction that the Supreme Court could grant if the claim had been made to that court. The power given in this section is only in respect of an action or matter within the Magistrates Court's jurisdiction, allowing ancillary orders, such as a declaration, injunction or other equitable order, to be made in relation to a claim otherwise falling within its jurisdiction: Murcia & Associates (a firm) v Grey (2001) 25 WAR 209; Rapoff v Doropoulos (1990) 3 WAR 451 at 457 – 460.
The Fair Trading Act expressly provides that it is only the Supreme or the District Court which can grant an injunction (s 74 and s 75) or make other orders including an order declaring the whole or any part of a contract made between the parties to have been void from its beginning (s 77(3)(a)) or an order directing the person engaged in the conduct to refund money or return property to a person who has suffered loss and damage (s 77(3)(d)).
Counsel for Mr and Mrs Bulcraig referred to s 77(7) of the Fair Trading Act and argued that s 77(7) means that "exclusive jurisdiction is not granted to the Supreme Court and District Court". Section 77(7) provides:
"(7)The powers conferred on the Supreme Court and the District Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement."
On a true construction of the words of this provision, s 77(7) does not operate to expand the jurisdiction of the "other court" referred to (in this case, the Magistrates Court) to enable that court to make the orders set out in s 77(3). I consider this to be so not only on the ordinary meaning of the words in s 77(7) but also when regard is had to the whole of the section. Section 77(2) provides that the power of the Supreme Court or the District Court to make other orders may be exercised "whether or not other proceedings have been instituted under this Act in relation to a contravention". I construe s 77(7) to mean that the powers of the Supreme and District Courts do not affect whatever other powers another court may have in relation to proceedings instituted in that other court in respect of the contract or arrangement. Section 77(7) does not operate to give the other court a jurisdiction it otherwise does not have.
I do not consider that the orders sought by Mr and Mrs Bulcraig pursuant to s 77(3) of the Fair Trading Act are truly ancillary to the damages claim which does fall within the Magistrates Court's jurisdiction. This is not a situation where the only relief claimed is the recovery of an amount of money or of damages within the jurisdictional limit and the s 77(3) orders are sought in aid of the principal relief. In my view, the claims for the relief pursuant to s 77(3) are in reality part of the principal relief sought and not ancillary to the claim for damages: see Murcia & Associates (a firm) v Grey (supra) at 214, 215. An order under s 77 can be made only by the Supreme or the District Court, notwithstanding that a claim for damages based on a contravention of the Fair Trading Act might be brought in the Magistrates Court.
If I am wrong in my assessment and the relief claimed pursuant to s 77(3) of the Fair Trading Act could be considered as ancillary relief, there would then be a conflict between the specific provisions of the Fair Trading Act, which gives jurisdiction to the Supreme and District Courts, and the general provisions dealing with jurisdiction in the Magistrates Court (Civil Proceedings) Act. Applying the maxim of statutory interpretation generalia specialibus non derogant, in the case of conflict between an Act dealing specifically with a particular topic and a later Act that deals generally with that topic, the specific Act must prevail: Goodwin v Phillips (1908) 7 CLR 1 at 14. Accordingly, the power to make ancillary orders pursuant to s 11 of the Magistrates Court (Civil Proceedings) Act could not give the Magistrates Court jurisdiction to make orders pursuant to s 77(3) of the Fair Trading Act, when the Fair Trading Act specifically confines that jurisdiction to the Supreme and District Courts.
The operation of s 39 of the Magistrates Court (Civil Proceedings) Act is not limited to cases where the whole of the claim made by the claimant is outside the jurisdiction of the Magistrates Court. The express words of s 39(4) make it clear that a superior court may make an order for transfer of proceedings if any part of the case is within its jurisdiction and any part of the case involves a claim that is outside the Magistrates Court's jurisdiction.
It is important that debate about the extent of the jurisdiction and orders which can be made by the Magistrates Court be avoided: see Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488 at [4] and [6]. It is likely that in defence of the counterclaim, Mr and Mrs Bulcraig will argue that they have no liability for rent and outgoings or damages for breach of the lease on the basis that the lease agreement ought to be declared void ab initio. The relief sought pursuant to s 77 of the Fair Trading Act will be an important issue to be resolved and a principal focus in both the claim and the counterclaim. In those circumstances, the matter should be transferred to the District Court, particularly when there can be no doubt that the District Court can exercise all necessary powers under s 77 of the Fair Trading Act.
For these reasons, in addition to the concession made by Mr and Mrs Bulcraig following the hearing of this application, I consider it is appropriate to make an order under s 39(4) of the Magistrates Court (Civil Proceedings) Act transferring this case to the District Court.

The geographical issue - to which registry of the District Court should the proceedings be transferred?

Section 39(5) of the Magistrates Court (Civil Proceedings) Act provides that a superior court that makes an order under subsection (4) may also make any other necessary orders including orders as to the registry of the superior court in which the case is to be conducted.
When an application is made to transfer a matter already existing in the District Court, under s 71 of the District Court of Western Australia Act 1969, it has been held that the most important issue when determining where the case should be heard is where the facts of the case are most closely aligned. The location of counsel for the parties is a minor consideration: see Eminent Holdings Pty Ltd & Ors v Ashbolt & Anor [2002] WADC 151 at [6], [7] and [9]; Wandt Pty Ltd v BB Hotel Pty Ltd & Anor [2004] WADC 239. I consider that similar considerations should apply when a superior court is considering the place or registry to which proceedings are to be transferred pursuant to s 39(5) of the Magistrates Court (Civil Proceedings) Act.
Having regard to the affidavit evidence before me as filed, there is no issue that the claims by Mr and Mrs Bulcraig are based on agreements made to purchase the café business and lease premises in the Margaret River area. Mr and Mrs Bulcraig reside in Witchcliffe. The witnesses which they propose to call, should this matter proceed to trial, all reside within the Margaret River area and at least one witness is an employee of the Shire of Augusta-Margaret River. The only parties who do not reside in the Margaret River area are the Hunts. Joseph Hunt lives in Victoria Park and works in Perth, while Irina Hunt now resides overseas. The principal witness for the second defendant, Downsouth (WA) Pty Ltd, resides in Margaret River, although he regularly travels to Perth and has no objection to the proceedings being transferred to Perth. The principal witness on behalf of the third defendant, Wilcox & Associates, also resides in Margaret River.
As the cause of action arose in Margaret River and most of the witnesses reside in the Margaret River area, I consider that this matter is more closely aligned to Margaret River than anywhere else and Perth is not the appropriate Registry. Although the Busselton Registry of the District Court is closer to Margaret River, the solicitor for Mr and Mrs Bulcraig has suggested that in order to provide a full time service for interlocutory applications, the Bunbury Registry is more suitable.
One matter which the counsel for the other defendants, Downsouth (WA) Pty Ltd and Wilcox & Associates Pty Ltd, have raised is the availability in Perth of an order for a special appointment pre-trial conference. This is the subject of a circular to practitioners CIV 2007/5, and provides that in appropriate cases, the court will list a pre-trial conference to a special appointment. A special appointment pre‑trial conference is allocated at a minimum of half a day before a Registrar. There is nothing in the rules or in the circular to practitioners which would indicate that the availability of a special appointment pre‑trial conference is confined to the District Court at Perth. There is no reason why such a special appointment pre-trial conference could not be ordered to take place in Bunbury.
In all the circumstances I will order that the matter be transferred to the Bunbury Registry of this Court.

The orders

The order I make will be that:
1.All proceedings in case number 282 of 2008 issued out of the Busselton Registry of the Magistrates Court of Western Australia be transferred to the Bunbury Registry of the District Court of Western Australia.
I will hear from the parties as to what costs order should be made.