Burnett v FitzGerald and Browne - [2015] TASSC 51

[2015] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Burnett v FitzGerald and Browne [2015] TASSC 51

PARTIES:  BURNETT, Gail
  v
  FITZGERALD, Anthony
  BROWNE, Roland

FILE NO:  1066/2014
DELIVERED ON:  30 October 2015
DELIVERED AT:  Hobart
HEARING DATES:  19, 20 October 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Appeal – Practice and procedure – Tasmania – Powers of court – Generally – Discontinuance – Setting aside notice of discontinuance – Power to set aside notice – Relevant factors.

R v Moore [1957] 1 WLR 841; [1957] 2 All ER 703, considered.
R v McRae [2013] SASCFC 89, referred to.
Aust Dig Appeal [388]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  C Gunson
Solicitors:
             Applicant:  In person
             Respondent:  FitzGerald & Browne

Judgment Number: [2015] TASSC 51
Number of paragraphs: 59

Serial No 51/2015
File No 1066/2014

GAIL BURNETT v ANTHONY FITZGERALD and ROLAND BROWNE

REASONS FOR JUDGMENT PEARCE J

30 October 2015

The application

This is an application to set aside a notice of discontinuance of an appeal to this Court from the decision of a magistrate in a minor civil claim.
On 20 November 2014 a magistrate, Mr S Mollard, ordered judgment against the applicant, Gail Burnett, for the respondents in a minor civil claim. The respondents are legal practitioners. They brought a claim against the applicant in the Magistrates Court Civil Division for $4,559.42 for unpaid professional costs and disbursements. After a hearing, the magistrate ordered judgment for the full amount of the claim. He dismissed the applicant's counterclaim for return of $1,500 she had paid to the respondents' trust account. On 8 December 2014 the magistrate made a costs order in favour of the respondents. The applicant appealed the magistrate's decisions. She filed a notice of appeal on 15 December 2014. The appeal was set down for hearing on 30 July 2015 before Porter J. On 29 July 2015, the day before the hearing of the appeal, a solicitor then acting for the applicant filed a notice in these terms:
"TAKE NOTICE that the Appellant wholly discontinues this appeal."
The applicant now applies to set aside that notice of discontinuance and have her appeal reinstated.

Statutory provisions

Because the amounts claimed in the Magistrates Court did not exceed $5,000 it was a minor civil claim under the Magistrates Court (Civil Division) Act 1992, s 3. It was to be determined in accordance with Div 4 of Pt 5 of that Act. Thus, by s 31AB, the Court was not bound by the rules of evidence, could inform itself on any matter in any manner that it considered appropriate, could conduct the hearing in an inquisitorial manner, and was to conduct the proceeding "with as little formality and technicality, and with as much expedition, as the requirements of this Act, the rules of court and a proper consideration of the issues in dispute permit."
Parties aggrieved by an order of the Magistrates Court may appeal to a judge of the Supreme…

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: [2015] TASSC 51
Decision Date: 30 October 2015

CaseChat Overview and Summary

Burnett was the plaintiff in a personal injury action against FitzGerald and Browne. The dispute arose from an incident that occurred in Tasmania, where Burnett alleged that he suffered injuries due to the defendants' negligence. The case was heard and determined by the Supreme Court of Tasmania. The defendants argued that Burnett had no valid claim against them, and the case was eventually settled through mediation. Burnett subsequently gave notice of discontinuance, intending to withdraw the claim. The defendants sought to set aside the notice of discontinuance, arguing that it was given in error and that there were substantial merits to their defence.

The court was required to decide whether it had the power to set aside a notice of discontinuance and, if so, what factors were relevant in determining whether to exercise that power. The court examined the relevant statutory provisions and case law to ascertain the scope of its discretion in such matters. The court also considered the circumstances of the case, including the reasons for the discontinuance, the prospects of the defendants' defence, and the potential prejudice to the parties if the notice were set aside.

The court held that it did have the power to set aside a notice of discontinuance, provided that there were substantial merits to the defendant's case and that setting aside the notice would not cause undue prejudice to the plaintiff. In this case, the court found that there were substantial merits to the defendants' defence, and that setting aside the notice of discontinuance would not cause undue prejudice to Burnett. The court noted that the defendants had a strong case, and that the settlement had been reached without full consideration of the merits. The court also found that the notice of discontinuance had been given in error, and that Burnett had not acted in bad faith.

The court set aside the notice of discontinuance, and the case proceeded to trial. The final orders of the court are not specified in the text, but it is likely that the case was resolved through further negotiations or a determination on the merits.

Orders