Carmody v WA Solicitors Pty Ltd

[2019] WADC 165

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CARMODY -v- WA SOLICITORS PTY LTD [2019] WADC 165

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   21 NOVEMBER 2019

DELIVERED          :   5 DECEMBER 2019

FILE NO/S:   CIV 3161 of 2019

BETWEEN:   GERALD MICHAEL CARMODY

First Plaintiff

GM CARMODY HOLDINGS PTY LTD

Second Plaintiff

AND

WA SOLICITORS PTY LTD

First Defendant

AUSTRALASIAN SOLICITORS PTY LTD

Second Defendant

Catchwords:

Practice and procedure - Application to transfer action from Magistrates Court to this court and consolidate - Consideration of relevant legislation and consequences of delay and dual representation

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 39

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff	:	Mr P Brunner
Second Plaintiff	:	Mr P Brunner
First Defendant	:	Mr N Milosevic
Second Defendant	:	Mr N Milosevic

Solicitors:

First Plaintiff	:	Bailiwick Legal
Second Plaintiff	:	Bailiwick Legal
First Defendant	:	HHG Legal Group
Second Defendant	:	HHG Legal Group

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

Freeman v McCabe [2008] WADC 125

DEPUTY REGISTRAR HEWITT:

1. By chamber summons filed 11 September 2019 the plaintiff to this action sought to have a Magistrates Court action GCLM 13720/2016 remitted to this court and consolidated with the present proceedings. 

2. The authority upon which the applicant relies to authorise the transfer of the action to this court is to be found in the Magistrates Court (Civil Proceedings) Act 2004 (WA) and the section upon which the applicant relies is s 39 of the Act which is in the following terms:

   39.Transfer of Magistrates Court case to superior court

   (1)        In this section -

   superior court means the District Court or the Supreme Court.

   (2)A party to a case in the Court may apply to a superior court for an order that all or a part of the case be transferred to the superior court.

   (3)The application must be made in accordance with rules of court that apply in the superior court.

   (4)The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and -

   (a)involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or

   (b)should be dealt with by the superior court because of its complexity or because of a question of law involved.

   (5)A superior court that makes an order under subsection (4) may also make any other necessary orders including orders as to -

   (a)the registry of the superior court in which the case is to be conducted; and

   (b)      the payment of fees in the superior court; and

   (c)the costs in the case in relation to proceedings in the Magistrates Court.

   (6)On receiving an order made under subsection (4) a registrar of the Magistrates Court is to send the Court's file to the superior court.

   (7)If an order is made under subsection (4) the superior court is to deal with the case as if it had been commenced in that court.

3. The critical provision is of s 39(4) which authorises the court to make an order if satisfied that the claim in the Magistrates Court or that of another party or an issue is outside the Magistrates Court jurisdiction or should be dealt with by the superior court because of its complexity or because a question law is involved.

4. It is therefore necessary to examine the issues which are raised in each of these cases to determine if the threshold requirement of s 39 has been satisfied. The Magistrates Court case involved the first and second defendants to the present action, as solicitors suing for their fees. The action in the District Court involves essentially a claim for breach of contract, negligence or breach of fiduciary duty arising from the retainer between the plaintiffs and the defendants.

5. The District Court action commenced on 21 August 2019.  The Magistrates Court action commenced approximately three years ago and has being set down for a trial in the Magistrates Court in March 2020.  No counterclaim has been lodged in that action.  There is therefore nothing that I can see which is contained within those proceedings which could properly be described as being outside the Magistrates Court jurisdiction.  Furthermore, I am unable to see anything concerning the case that can be described as complex requiring the attention of a Higher Court or a question of law being involved and I am therefore of the view that the requirement which is necessary for the matter to be transferred to this court has not been satisfied.  The common issues between the cases is simply that they arise between the same parties and out of the same contract, but the actual issues to be determined are quite different.  Furthermore, I am concerned that the present action was brought very late in the piece and were I to accede to the application the opportunity to have the Magistrates Court case tried would be lost and significant further delays would be imposed upon the plaintiffs to that action.  A further complication which concerns me is the fact the District Court action involves issues in respect of which the present defendants would be insured and the conduct of the case in defence of the action undertaken by a different set of lawyers.  I am unable to see that those lawyers could properly represent the solicitors in the pursuit of their outstanding fees and simultaneously defend the plaintiff's action and that again would work a prejudice to the solicitors adding a complication to the conduct of the proceedings which is undesirable and unnecessary. 

6. In summary therefore my decision is that the provisions of s 39 of the Magistrates Court (Civil Proceedings) Act have not been satisfied in this case and it is therefore not appropriate for me to make the order which is sought.  I am also of the view that the making of the order would impose a significant disadvantage to the defendant and impose considerable delay to the proceedings which have been ongoing for a number of years. 

7. Counsel for the applicant has referred me to the case of Freeman v McCabe [2008] WADC 125. In that case the plaintiff had obtained a default judgment in the Magistrates Court for damages to be assessed and upon review considered that the proper quantum of its damages would exceed that which could be awarded in the Magistrates Court.

8. Her Honour Judge Sweeney considered that to be a case in which it was appropriate to transfer the matter to the District Court in order that the full quantum of the plaintiff's claim could be considered. Her Honour remarked that even after a judgment has been entered it is possible to amend the claim to increase the sum claimed and thereby take it out of the jurisdiction of the court below. In my view that case is quite different from the matter which is before me because the sum which is being sought by the solicitors is not even close to the jurisdictional limit of the Magistrates Court and there is no other aspect of the at case which would attract the application of s 39. It is therefore my view, even taking into account the case of Freeman v McCabe there is nothing in the proceedings in the court below which would justify moving it from that court to this and indeed to do so would work a serious injustice to the plaintiffs in the court below.  For these reasons I am of the view that application should be dismissed and that is the order which I propose to make.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ET
Court Officer

28 NOVEMBER 2019