Chantec Pty Ltd v Comgroup Supplies Pty Ltd - [2000] WADC 261

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CHANTEC PTY LTD -v- COMGROUP SUPPLIES PTY LTD [2000] WADC 261

CORAM: WISBEY DCJ

HEARD: 6 OCTOBER 2000

DELIVERED : 20 OCTOBER 2000

FILE NO/S: CIV 3584 of 1998

BETWEEN: CHANTEC PTY LTD (ACN 009 314 836)
Plaintiff
AND
COMGROUP SUPPLIES PTY LTD (ACN 008 732 465)
Defendant

Catchwords:

Practice and procedure - Inferior Courts - District Court - Power to remit to Supreme Court - Whether s 77 of District Court Act permits remittal after the obtaining of interlocutory judgment on liability

Legislation:

District Court Act s 77

Result:

Application to remit, refused

Representation:

Counsel:

Plaintiff: Mr M H Zilko
Defendant: Mr S Penglis

Solicitors:

Plaintiff: Griffiths & Godecke
Defendant: Freehill Hollingdale & Page

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

Constantine Karageorge v Deputy Commissioner of Taxation (1999) NSWSC 1009
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Re Cemac Modular Constructions Pty Ltd [1973] 1 NSWLR 263
Trimble v Piggott (1995) 14 WAR 329

Case(s) also cited:

Nil

WISBEY DCJ: By Writ of Summons issued out of this Court on 17 September 1998 the plaintiff sought "damages for breach and repudiation of contract" and asserted in par 6 of the statement of claim that full particulars of its loss and damage would be provided prior to trial.
The defendant filed what could loosely be described as a defence on 14 October 1998, putting the plaintiff to the proof of its cause of action, and asserting that it had failed to mitigate its damage. Simultaneously, it filed a request for further and better particulars seeking a quantification of the claimed loss.
By summons filed 27 October 1998, the plaintiff sought to strike out the defence on the grounds particularised therein, and on 10 November 1998 the Deputy Registrar made an order striking out par 7 of the amended defence filed that day.
On 6 November 1998 the defendant filed a summons seeking the further and better particulars of claim requested, and it was dismissed by the Deputy Registrar on 10 November 1998.
Notices of Appeal were filed in respect of both orders made 10 November 1998, and on 5 March 1999 orders were made by the Judge in Chambers striking out the defence and dismissing the defendant's application for particulars.
By summons dated 25 November 1998 the plaintiff applied for summary judgment pursuant to O 14 of the Rules of the Supreme Court, and on 25 March 1999 (there being no opposition by the defendant) the Registrar acceded to the application and gave judgment for the plaintiff against the defendant for damages to be assessed, with costs of the action to be taxed.
On 25 March 1999 the Registrar made orders directing the interlocutory procedures to be followed preparatory to the assessment of damages. Considerable interlocutory skirmishing followed until 5 May 2000 when the plaintiff filed particulars of loss and damage quantified at $1,125,361.71. As that claim substantially exceeded the jurisdiction of this Court, the plaintiff on 10 May 2000 filed a summons pursuant to s 77 of the District Court of Western Australia Act 1969 seeking an order remitting the action to the Supreme Court. The supporting affidavit of the plaintiff's solicitor Rodney Griffiths deposes to the fact that it was not possible to quantify the claim when the writ was filed, and the extent of the loss was ascertained only following protracted interlocutory steps.
Where an action is commenced in this Court, and it becomes apparent that because of its magnitude it is likely to exceed the jurisdiction, s 77 provides a procedure enabling it to be remitted to the Supreme Court. But for its saving effect the action would otherwise be required to be struck out. Section 77 states:
"Where it appears to a District Court Judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court."
The extent of the Court's power under s 77 was discussed in Trimble v Piggott (1995) 14 WAR 329.
Having obtained judgment of this Court for damages to be assessed, the plaintiff now seeks to have the damages assessed by the Supreme Court, in the expectation that the amount ordered to be recovered will exceed the monetary jurisdiction limits of this Court. The defendant argues that in all the circumstances that procedure is not permissible.
This Court's civil jurisdiction is conferred by Division 2 of Part III of the District Court of Western Australia Act 1969, and more particularly s 50 which provides that the Court has the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has in relation to all personal actions (excepting claims for damages for personal injury) where the amount, value, or damages sought to be recovered, is not more than $250,000.
Section 51 of the Act enables the Court to find and record a verdict or judgment for an amount in excess of $250,000, then recoverable by the claimant, but only in an action where the amount claimed did not exceed $250,000 ‑ that is, an action where the claimant was at all times prior to judgment of the view that the quantum of the claim was within the Court's jurisdiction.
The legislation history of s 51 is of interest. When the Act was passed in 1969 it relevantly provided:
"51.Where at a trial of any cause in the Court a verdict is returned for or a judgment is given for or the total amount that would have been recoverable if the claimant had not been at fault is found at an amount in excess of six thousand dollars but not exceeding ten thousand dollars, the Court shall find and record the amount of the verdict or judgment or, as the case may be, such total amount and the claimant is entitled to recover the full amount of the verdict or judgment, or as the case may be, of such total amount reduced in accordance with the Law Reform (Contributory Negligence and Tort‑feasors' Contribution) Act, 1947, notwithstanding that the amount claimed does not exceed six thousand dollars."
It thus enabled the Court to bring down a judgment that did not exceed its primary jurisdiction by more than $4,000 (the excess).
By s 9 of amending Act 40/1972, consequent upon an increase in the Court's primary jurisdiction to $10,000, the excess was increased to $6,000.
By s 6 of amending Act 69/1976, consequent upon an increase in the Court's primary jurisdiction to $20,000 the excess was increased to $10,000.
By s 10 of amending Act 118 of 1981, consequent upon an increase in the Court's primary jurisdiction to $50,000 the excess was increased to $25,000.
By s 9 of amending Act 122 of 1984, consequent upon an increase in the Court's primary jurisdiction to $80,000 the excess was increased to $40,000.
Finally, by s 11 of amending Act 53 of 1992 consequent upon an increase in the Court's primary jurisdiction to the present level of $250,000 the excess limit was removed.
Having regard to the fact that s 50(2) gives the Court unlimited jurisdiction in personal injury actions, it is difficult to envisage an action in which s 51 is likely to be applicable.
Section 59 of the Act relevantly provides that a plaintiff who has a cause of action for an amount in excess of the stipulated monetary jurisdictional limit can bring the action in the Court, abandoning the excess by prescribed notation in the writ, and can on proving his case recover to an amount not exceeding the monetary jurisdictional limit.
The clear legislative intent is that the Court's monetary civil jurisdiction is limited to actions where the amount value or damages sought to be recovered is not more than $250,000; or where the parties have signed a consent memorandum as provided for in s 50(1)(e). Notwithstanding, the Court can give judgment for an amount in excess of $250,000 where, notwithstanding the expectation of the claimant, the Court assesses the amount value or damages at a figure in excess of $250,000.
Reverting to s 77 of the Act, it is immediately apparent that what is to be remitted is an action or matter
Section 6 defines:
(a)"action" as "a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court and includes suit".
(b)"matter" as "a proceeding in the Court that is commenced otherwise than by writ".
The assessment of the plaintiff's damages is not a matter but a step within the action, and it is of course the action that the plaintiff seeks to have remitted.
In Ex parte Sadler;Re Cemac Modular Constructions Pty Ltd [1973] 1 NSWLR 263 the New South Wales Court of Appeal discussed the application of s 47 of the Districts Courts Act 1912 (NSW) which provided for the removal of a District Court plaint into the Supreme Court for the purpose of hearing and a determination. The appeal followed protracted litigation in the District Court before jury by a plaintiff seeking damages for personal injuries sustained in the course of his employment. The history of the litigation is summarised in the decision of Hutley JA at 271 as follows:
"The plaintiff commenced his action on 12 July, 1967. The first hearing of his action on 4 September, 1969 resulted in a verdict for $4,000, which verdict was set aside because of the conduct of the jury. The second hearing before Cameron‑Smith DCJ resulted in a verdict for $17,000 which his Honour set aside on the ground that it was excessive and ordered a new trial confined to the question of damages. The third hearing resulted in a verdict of $35,360, but no judgment was entered. The defendant moved for a new trial and for the verdict to be set aside. Levine DCJ granted a stay of proceedings and noted the application for the new trial and stood it over generally. His Honour then died. On 13 June 1972, the defendant, by letter to the Registrar of the District Court, purported to withdraw its application for a new trial and requested that judgment be entered for the plaintiff in the sum of $10,000. At the same time it sent a cheque for this amount to the solicitors for the plaintiff, which cheque was returned. The express ground for the application is that the plaintiff can, in the light of the verdicts of two juries, expect a judgment in excess of $10,000."
Section 95A(2) of the District Courts Act, 1912 (NSW), provided that where at a trial of any cause in the District Court a verdict was returned for an amount in excess of $10,000, the Court should, notwithstanding the amount claimed, find and record a verdict for the amount of $10,000. In Sadler no such verdict for the amount of $10,000 had been found and recorded by the District Court.
Jacobs P in a dissenting judgment stated at 265:
"The other principal submission on behalf of the respondent is that there is in fact a verdict in the present matter and that therefore the procedures under section 47 are not applicable. I shall deal with this latter point first. Although the proceedings in the District Court have reached the stage of verdict, the proceedings in the Court have not concluded because the Court has not found and recorded a verdict for the amount of $10,000. If it had done so it would be open to serious doubt whether the plaint could be removed into the Supreme Court under s 47 so long as the verdict stood. Compare Ex parte Vigilant Finance (NSW) Pty Ltd;Re Cameron Smith [1964] NSWR 1282.Although there are examples of removal from an inferior court to the superior court by certiorari after judgment, in order to effect execution not obtainable on the judgment in the lower court (see for example Lawes v Hutchinson(1835) 149 ER 1289) it appears to me that, more probable than not, the language of section 47 envisages the removal to the Supreme Court of a District Court plaint for the purpose of hearing and determination in the Supreme Court. If the District Court proceedings have reached the stage of finality of hearing and determination then it is doubtful whether section 47 would apply and in any case it is doubtful whether the court would in its discretion make an order under section 47."
In the event, being of the view that the plaint in the District Court had not reached the stage of finality of hearing, his Honour would have ordered that the plaint be removed into the Supreme Court.
Reynolds JA expressed the view that the application and its determination were complicated by two factors, being the long course of litigation during which the issue of liability was determined between the parties in the District Court and, second, the fact that a jury had later made an award of damages which had not been set aside. He took the view that it was unnecessary to decide whether the Court had jurisdiction to make an order under s 47 after a verdict, stating that it was sufficient to say that it could lead to strange and inconvenient results. He seems to have been of the view that there probably was a plaint within the meaning of s 47 still subsisting which could be the subject of an order under that section, but which would come to the Court with the issue of liability concluded against the defendant and a jury's verdict as to amount standing and unchallenged. He stated (relevant to the matter before me) at 270:
"The applicant has consciously taken his course. He has chosen to take the benefit of a favourable finding as to liability in the jurisdiction of his choice and has persisted through three hearings in his claim which could only result in an effective award of $10,000."
In those circumstances his Honour did not see injustice in declining to remit the proceedings.
Huntley JA expressed similar views to Reynolds JA and joined in refusing the application to remove the proceedings to the Supreme Court.
The plaintiff's counsel referred me to and relies upon the unreported decision of Constantine Karageorge v Deputy Commissioner of Taxation (1999) NSWSC 1009 (6 October 1999) in which Hamilton J discussed the extent and applicability of s 145 of the District Court Act 1973 which replaced the old s 47 and relevantly provided:
"Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit."
His Honour discussed a number of decisions of the Court which had considered the applicability of s 47 and concluded at par 13:
"on its proper construction s 145 permits removal at any stage of the proceedings, if anything remains to be done in those proceedings. It will not be appropriate and may be impermissible, if, after contest, judgment has been entered for the defendant, or if a judgment entered for the plaintiff has been fully satisfied. But if anything remains to be done in the proceedings, they may be removed into the Supreme Court, if the occasion for the exercise of the discretion is demonstrated. This interpretation provides a full and flexible power which may be exercised in the interests of the just, cheap and quick disposal of the proceedings. In my view it accords with the legislative intent to be derived from the words of the statute as enacted. It will permit, in circumstances such as the present, the avoidance of the agitation of the same or closely related subject matter before two tribunals at the same time."
Although his Honour was of the view that the proceedings could be removed after judgment, he was dealing with a situation where the judgment obtained was for an amount within the lower court's monetary jurisdiction. His Honour was not faced with the situation that presents itself on this application.
The primary difficulty facing the plaintiff in the application before me is that it has obtained judgment against the defendant, and although that judgment is limited to liability, the reality is that this Court has "heard and determined" that issue and pronounced final judgment on it. By commencing its action in this Court and proceeding to the stage of obtaining interlocutory judgment, the plaintiff represents that the amount sought to be recovered in the action does not exceed the monetary jurisdictional limit dictated by s 50.
When the plaintiff obtained and extracted interlocutory judgment, the cause of action founded in contract merged in the judgment.
In Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Brennan J at p611 relevantly stated:
"If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered…and when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment."
The plaintiff's contractual rights have merged in the interlocutory judgment, leaving outstanding only the question of the quantification of its loss. Its election by obtaining interlocutory judgment constituted an acknowledgment that the damages sought to be recovered would not exceed the Court's monetary jurisdictional limit of $250,000. If the position was otherwise this Court did not have the authority to grant the judgment extracted. In reality, the judgment says that the plaintiff is entitled to damages (not exceeding $250,000) to be assessed.
It is not appropriate for this Court to remit to the Supreme Court an action which it has heard and determined and on which it has pronounced judgment.