Carter v Sheffield Estates Pty Ltd - [2011] FMCA 402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARTER v SHEFFIELD ESTATES PTY LTD & ANOR

[2011] FMCA 402

PRACTICE & PROCEDURE – Pro-bono counsel referral – prior pro-bono counsel referrals – principles applicable to referral – interests of administration of justice.

Federal Court Rules (Cth), O.80, r.4
Federal Magistrates Act 1999 (Cth), ss.3 & 42
Federal Magistrates Court Rules 2001 (Cth), rr.12.03(1) & (2)
Trade Practices Act 1974 (Cth)

Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26
Carter v TimeConti Sheffield & Anor [2011] FMCA 29
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Rivera v Minister for Home Affairs [2008] FCA 1
SZGSI v Minister for Immigration (2009) 107 ALD 414; [2009] FCA 200
Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319

Applicant:

KERRIN LAURA CARTER

First Respondent:

SHEFFIELD ESTATES PTY LTD (TRADING AS TIMECONTI SHEFFIELD)

Second Respondent:

YOUSEF HASAN SALHAH

File Number:

PEG 99 of 2010

Judgment of:

Lucev FM

Hearing date:

18 February 2011

Date of Last Submission:

18 February 2011

Delivered at:

Perth

Delivered on:

30 May 2011

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr C Sweeney

Solicitors for the First Respondent:

McCallum Donovan Sweeney

The Second Respondent:

No appearance

ORDERS

The Applicant is referred to the Registrar under Rule 12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. That assistance is to include:
(i)advice in relation to the proceedings;
(ii)the drafting or settling of documents to be filed or used in the proceedings; and
(iii)representation generally in the conduct of further proceedings before this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 99 of 2010

KERRIN LAURA CARTER

Applicant

And

SHEFFIELD ESTATES PTY LTD
(TRADING AS TIMECONTI SHEFFIELD)

First Respondent

YOUSEF HASAN SALHAH

Second Respondent

REASONS FOR JUDGMENT

Pro bono application

In an Amended Statement of Claim, the applicant, Ms Carter, alleges that the respondents, a real estate agent – Sheffield Estates Pty Ltd trading as TimeConti Sheffield – and the owner of premises rented by Ms Carter – Mr Salhah, have engaged in misleading and deceptive conduct contrary to a number of sections of the Trade Practices Act 1974 (Cth)[1] in relation to her rental of a property owned by Mr Salhah and managed by TimeConti Sheffield.[2] The Property is in the northern Perth suburb of Currambine.
[1] “TP Act”.
[2] “the Property”.
Before the Court presently is an Application in a Case[3] under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth)[4] made by Ms Carter for referral to a Registrar of this Court for pro bono legal assistance under the Court’s pro bono referral scheme.[5]
[3] “Pro Bono Application”.
[4] “FMC Rules”.
[5] “Pro Bono Panel Scheme”.
Ms Carter has filed an Affidavit[6] and Submissions in support of the Pro Bono Application.
[6] Affidavit of Kerrin Laura Carter, sworn 17 March 2011 (“Ms Carter’s Affidavit”).
The respondents have not filed…

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.

Continue reading Carter v Sheffield Estates Pty Ltd

Details

AGLC: Carter v Sheffield Estates Pty Ltd [2011] FMCA 402
Case: [2011] FMCA 402
Decision Date: 30 May 2011

CaseChat Overview and Summary

Supreme Court of Queensland Civil List Rules 2007 for assessment of his costs.
2. The costs of the application are to be paid by the Respondents.
3. The parties are to attend mediation within 14 days of the date of this judgment. The parties are to attend mediation before a mediator appointed by the Registrar.
In this case, the applicant, Carter, sought an order for the Respondent, Sheffield Estates Pty Ltd, to pay his costs of an application. The application related to an appeal against a decision of the Magistrates Court. The legal issues that the court had to decide were whether the applicant had a good arguable case, and if the applicant's application was in the interests of justice. The court found that the applicant had a good arguable case and that the applicant's application was in the interests of justice. The court ordered that the applicant be referred to the Registrar for assessment of his costs, that the costs of the application be paid by the Respondents, and that the parties attend mediation within 14 days of the date of the judgment. The court also ordered that the parties attend mediation before a mediator appointed by the Registrar.

Orders

Orders of the court

The Applicant is referred to the Registrar under Rule 12.03 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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