City of Victor Harbor v Roeger

THE CITY OF VICTOR HARBOR v ROEGER and ANOR
[2002] SASC 218
Magistrates Appeal: Civil

PERRY J. This appeal arises out of an action brought in the civil jurisdiction of the Magistrates Court.
The plaintiffs, Mr and Mrs Roeger, who are the respondents to the appeal, sued the appellant, the City of Victor Harbor claiming an order for specific performance of an agreement said to have been entered into between the parties, together with an order for damages for breach of the agreement.
The learned trial magistrate found that the appellant was in breach of the agreement and found in favour of the plaintiffs’ claim for an order for specific performance. Rather than proceeding separately to assess damages for breach of contract, in light of a concession by counsel for the appellant that the respondents were entitled to compensation under s 316 of the Local Government Act 1934, he stood over the question of quantification of the compensation under that Act for further hearing and determination by the court in default of an agreement between the parties.
As well, he found in favour of the respondents on an issue as to whether or not the respondents’ claims were statute barred under the Limitation of Actions Act 1936 and as to an extension of time for the commencement of the proceedings.
The appellant appeals to this Court against the findings under the Limitation of Actions Act and against the order for specific performance. It does not dispute its liability to pay compensation under the Local Government Act.
As will be seen, the appeal against the order for specific performance raises a jurisdictional issue.
Background Facts
The respondents purchased approximately 84 acres of land at Nettle Hill Road, Hindmarsh Valley, in the mid-1970s. Originally the property was used as a weekend residence, but during the past five or six years the respondents have lived permanently on the land.
Before 1983, Nettle Hill Road was unsealed. It had a significant gradient uphill which caused rainfall in the area to flow naturally downhill from the north-west of the road onto the respondents’ land. Before the road was sealed, drainage onto the respondents’ land was diffuse, and according to the respondents caused no discernible damage to the land.
In 1983 Nettle Hill Road was bituminised and a number of culverts were installed under the road to take stormwater from the property to the north-west of the road. This caused a problem for the respondents in that some of the culverts caused a more concentrated flow of water onto their property.
The culverts adjoining the respondents’ property were indicated on a plan tendered before the learned trial magistrate. They are numbered on the plan as numbers 5, 6, 7, 8 and 9.
In the early 1990s the respondents noted that what was described as a “canyon” was being created on their property near the debouchment of the culvert number 9.
This prompted the respondents to take the matter up both verbally and in writing with the appellant.
The outcome was that eventually an agreement was struck between the appellant and the respondents. The terms of the agreement are evidenced by letters passing between them, copies of which were put in evidence at the trial.
The first relevant letter is dated 6 May 1993 from the Claims Officer of the Local Government Association Mutual Liability Scheme. Part of the letter is as follows:
“In an attempt to resolve this matter, Council are prepared to undertake the following works:-
- The drains on the high side of Nettle Hill Road adjacent to your property be blocked off.
- A spoon drain be installed on the same side of the road.
These proposed works will be monitored on a regular basis and reviewed following 12 months of installation.
Whilst we are still of the view that Council’s previous offer of $1,000.00 to resolve the matter was adequate, Council is prepared to increase that offer to the all inclusive sum of $2,500.00 (Two Thousand Five Hundred Dollars), in order to finalise the matter now.”
The respondents replied to that letter by letter of 24 May 1993 in the following terms:
“We refer to your letter dated 6 May 1993 and subsequent telephone discussions between Mr Crabb, Mr R. Walsh and Mr B. Pride of the Victor Harbor Council and the writer.
We accept the offer made in your letter with the following additional conditions agreed verbally with the above:
Council will deliver to the site of the major washaway, at their expense, suitable filling soil sufficient to restore finished levels to those which originally existed. Soil to be heaped at the location, agreed on site with Mr Pride on 18 May 1993.
Council undertakes to confer with us before carrying out any future works that may again cause stormwater from Nettle Hill Road to enter our property. Obviously we wish to avoid a repetition of the present damage.
We understand the proposed works will be put in hand immediately and will be completed in a week or two and we are pleased that an acceptable resolution is at hand.”
Subsequently the respondents executed a document described as a “release voucher” acknowledging the payment of $2,500 in full settlement of its claim against the appellant “for damage to property and land which occurred on or about October 1992”.
It follows that from the time of execution of the so-called release voucher the respondents had no further claim against the Council relating to whatever damage had occurred at the time referred to in that document. It was not suggested by either party that the execution of the release voucher in any way qualified the obligation of the appellant arising under the remaining terms of the contract as evidenced by the two letters to which I have referred.
Two months after the execution of the release voucher, namely by letter dated 13 April 1994, the District Manager of the appellant wrote to the respondents in the following terms:
“The issue of closing off the other culverts which cross the road and cause discharge onto your property has been considered by Council. The matter was referred to Council’s Consulting Engineer for his recommendations and he has advised Council to not block them off as was suggested in your letter. His reason for this is that the culverts have been there for a long time, they are required for the safe and adequate drainage of the road, and their elimination may result in significant scouring on the up hill side of Nettlehill Road downhill. It may also increase the drainage discharge problem onto a neighbouring landowner downhill of yourselves.
However, Council appreciates that with any road drainage structure, the potential for scouring is always possible. Accordingly, it has instructed its Senior Overseer to regularly inspect all the existing culverts on this jump up section of Nettlehill Road and to immediately act should there be any sign of scouring in the future.
I thank you for your interest in this matter and regret that Council is unable to accede to your request. Nevertheless, I trust that you will accept that Council has approached your request in a reasonable and responsible manner.”
That letter amounted to a repudiation of the Council’s obligations under the agreement. There is no doubt that the letter was evidence of a breach of the agreement. This much was expressly admitted by the appellant in its defence filed in the proceedings.
Before the letter was written, culvert number 9 was blocked off. But presumably for the reasons stated in the letter, Council did not proceed to close off the other culverts or install a spoon drain. That remains the position at the present time.
Notwithstanding the breach of contract by the appellant, the respondents let the matter rest for the time being, following receipt of the letter of 13 April 1994.
Thereafter, stormwater from the culverts continued to discharge in a somewhat more concentrated form over the respondents’ land, but the damage as was caused by this was relatively minor.
However, on or about 6 July 2000, the respondents observed major damage to the paddock adjacent to culvert number 7, apparently caused by the recent discharge of stormwater. An outflow had formed which was draining into a hole in the paddock. Mr Roeger described this as “tunnel erosion”.
The learned trial magistrate described the damage in this way:
“Not only does it constitute unsightly damage to the property but it has rendered useless a large part of the subject paddock. It is simply unsafe to graze cattle in the subject paddock because the holes and canyons are a real hazard to the safety of the animals. Because there is little or no grazing now in the paddock the grass has grown and this makes it even more difficult to observe the presence or location of particular holes.”
On about 7 July 2000, Mr Roeger notified the Council verbally of the new problem which had arisen. An officer of the appellant attended on the site the next day.
Subsequently further correspondence was entered into between the parties in which the respondents made it clear that they expected the Council to honour the agreement which had been entered into during 1993 and to proceed to close off the remaining culverts. As it was put by the learned trial magistrate:
Mr Roeger ... had been advised that a number of elected councillors were going to inspect the property and speak to him and he to them but that never occurred, to his great disappointment. A letter from the plaintiffs’ solicitors ... of 13 February 2001 to the defendant Council never elicited a satisfactory response. An offer to supply necessary soil has been made by the defendant and never withdrawn. That is where the stalemate lies and that is why this litigation proceeded.”
The claim was filed in the Magistrates Court on 11 April 2001. In the particulars of claim, after referring to the circumstances leading up to the execution of the agreement, the respondents plead as follows:
“16.On or about 13^th April 1994 in breach of the agreement, the defendant advised the plaintiffs that the four remaining culverts at the said Nettle Hill Road would not be closed off. During the winter of 2000 heavy rains at the property caused substantial damage at the property by way of water erosion, resulting in loss and damage to the plaintiffs.
17.The four remaining culverts at the property remain open, and have not been closed off by the defendants as agreed or at all.
18.In the alternative, the defendant has so constructed the culverts as to direct storm water onto the property thereby causing injury to the property.
The actions of the defendant in such construction and the directing of storm water by such means onto the property constitute an actionable act of negligence and/or nuisance on the part of the defendant and/or a trespass onto the property.
AND the plaintiff claims:
1.An order for specific performance of the agreement, requiring that the defendant close the four remaining culverts at the property, and construct a spoon drain on the high side of Nettle Hill Road;
2.An order for damages (to be assessed);
3.Costs.
4.Interest.
5.Such further or other orders as this Honourable Court deems fit.”
In their particulars of claim, the respondents did not seek an extension of time for the institution of the proceeding. However, in its defence, the appellant pleaded that “any action” by the respondents against it pursuant to the agreement was statute barred. The appellant further pleaded that the respondents had not pleaded “any facts giving grounds to an extension of the statutory limitation period pursuant to s 48 of the Limitation of Actions Act and the defendant states that no such facts or grounds exist”.
The respondents were slow to respond to the plea that the action was out of time. It was not until the first day of the trial that leave was sought and given by the trial magistrate for amendments to be made to the particulars of claim, being amendments in which an extension of time was sought. The following material facts were then pleaded:
“21.1In or about July 2000 the plaintiffs became aware of the occurrence of areas of tunnel erosion caused by stormwater issuing from the culverts.
21.2The plaintiffs drew this matter to the attention of the defendant, but received no satisfactory reply.
21.3In view of the facts set out in paragraphs 21.1 and 21.2 above the plaintiffs instructed solicitors to issue these proceedings.”
Although given leave to amend in those terms, the amendment was never carried into effect in the sense that it was endorsed on the respondents’ filed claim, which by that stage was an amended claim which had been filed on 11 October 2001.
I do not think that anything turns on the fact that the amendment raising the claim for an extension of time to institute the proceedings was not in fact endorsed on the respondents’ particulars of claim. It appears that the matter was argued before the learned trial magistrate as though the amendment had been carried into effect. The magistrate was invited to address the question whether or not what was apparently ascertained by the respondents in July 2000 was a fact material to the plaintiff’s case within the meaning of s 48(3)(b)(i), and whether in all the circumstances the discretion to allow an extension of time should be exercised in favour of the respondents.
In deciding those questions, the learned trial magistrate correctly had regard to the test laid down by the High Court in Sola Optical Australia Pty Ltd v Mills.[1] After referring to the history of the matter, the learned trial magistrate concluded:
“I have no hesitation in finding that the facts material to the plaintiffs’ case were the existence, presence, location, nature and extent of the erosion that was discovered on or about 7 July 2000 and which immediately crystallised an otherwise quiescent cause of action into one that had become or been causative of damage to the plaintiffs’ property.”
[1] (1987) 163 CLR 628 at 636.
While there may be some difficulty in accepting that the proper analysis is that a “quiescent cause of action” was in some way “crystallised” by the erosion caused in July 2000, the magistrate was clearly right to find that the observation by the respondents of the serious erosion which was caused in July 2000 amounted to the ascertainment of a material fact for the purposes of s 48. In my opinion, he correctly exercised his discretion to grant the extension of time sought.
On the hearing of the appeal, Mr Tredrea, who appeared for the appellant, contended that the learned trial magistrate erred in allowing the amendment to the plaintiffs’ particulars of claim in the terms to which I have referred, at such a late stage, and that this in some way caused prejudice to the appellant.
In the first place, I am not sure that there is any right of appeal against an interlocutory order in the nature of an order allowing an amendment to pleadings, although I accept that in paragraph 4.3 of the notice of appeal the appellant expressly complains that the trial magistrate erred in allowing the amendment at the stage when he did.
But in any event, in my view, there was no real prejudice to the appellant in the allowance of the amendment at such a late stage. The appellant had raised the question of the Limitation of Actions Act in its defence and must have come to the trial in the knowledge that the issue was likely to be pursued, albeit belatedly. Furthermore, in the circumstances of this case, the allowance of the late amendment did not have any apparent consequences in terms of the evidence which was led at the trial.
Mr Tredrea suggested that the pleadings were defective notwithstanding the order giving leave to amend, in that the application for extension was not endorsed on the originating process at the time the action was commenced. I do not consider that there is, with respect, anything in the point, as clearly, the amendment was intended to take effect nunc pro tunc, as at the date of filing the claim.
At the hearing, the only oral evidence was given by Mr Roeger. No evidence was given by anyone on behalf of the appellant and no request was made of the learned trial magistrate to allow an adjournment to create an opportunity for any evidence to be called by the appellant on the issue arising under the Limitation of Actions Act. Furthermore, in its argument on the appeal, the appellant has not identified any prejudice relating to the calling of evidence or the course of the trial resulting from the late amendment.
In my opinion, the appeal based on the amendment to the pleadings to permit the respondents to seek an order extending the time for the commencement of the proceedings, and as to the merits of the decision to permit the extension of time, must fail.
Specific Performance
In its notice of appeal, the appellant complains that the learned trial magistrate erred in law in finding that the Magistrates Court has jurisdiction to make orders in the nature of specific performance. It further complains that the learned trial magistrate:
“... erred in concluding on the evidence presented by the Respondents that damages would not be an adequate remedy, particularly when damages is (sic) claimed by the Respondents in the Claim, and therefore erred in exercising his discretion to extent time and/or make an order for specific performance.” [Notice of appeal, ground 4.5]
The question of the jurisdiction of the Magistrates Court to order specific performance was not raised by any of the parties, either in their pleadings or in the presentation of the case at the trial. It was first raised by the learned trial magistrate during the course of the trial. When he raised the matter, the point was embraced by counsel for the appellant, and both counsel were given an opportunity to address on the matter. The respondents, through their counsel, maintained that the court had jurisdiction to grant specific performance.
Thereafter it does not appear that the matter was referred to again. Certainly, there is no reference to the question of jurisdiction in the learned trial magistrate’s reasons for judgment.
He does, however, refer to the question whether damages might be an adequate remedy, and whether a decree of specific performance was appropriate. In that respect, he made the following observations:
“38In light of the above, I do not consider that monetary damages would or possibly could represent an adequate remedy in this matter. As I have already indicated, it would seem more likely than not that the extent erosion is the product of an ongoing and accumulating process rather than as a result of a one-off or exceptional or freakish set of meteorological conditions. Therefore, it would seem that any reasonable level of rainfall in this area represents an unacceptable risk to the plaintiffs of further, aggravating or even new damage to the property adjacent to any of the presently open culverts numbers 5, 6, 7 and 8. To that extent I agree with Mr Mellor’s submission that the defendant council ought to be held accountable to its original bargain with the plaintiffs. It is curious at the very least to observe that in its letter of 13 April 1994 that constituted the breach of contract the council gave few reasons for its reneging on its part of the bargain. There are some comments by way of blandishment that bear all the hallmarks of a flannel-tongued cop-out. I think that the Roegers needed to and continue to need to be given proper legal consideration and not be simply fobbed off by a council so willing to wash its hands of the matter.
39When I consider the sorts of factors that determine whether a remedy of damages is to prevail over that of specific performance, I consider overwhelmingly that the latter remedy in this case should prevail. It seems to me that the alternative would be that from year to year this most unsatisfactory situation would be revisited in our courts and I have in mind, when giving my final judgment and consequential order, the important public interest in seeing that disputes of this nature which give rise to litigation of this nature are put to an end.
40In exercising the discretion to order specific performance, I also have regard to the question of whether or not there has been any unacceptable delay or laches on the part of the plaintiffs in bringing their claim. I do not think that that argument has any substance because, among other things, any delay substantially arose from the force and effect of the very representations made by the defendant council to the plaintiffs in their letter of 13 April 1994 and not as a result of anything the plaintiffs did or did not do in a vigilant way.”

In my view, if there was jurisdiction to make an order for specific performance, there is no reason to interfere with the way in which the discretion to do so was exercised in this case.
It follows that the issue narrows down to the question as to whether or not there was jurisdiction to take that course.
The Magistrates Court of South Australia is established as a court of record by the Magistrates Court Act 1991 (see s 4 and s 5) (hereafter described as “the Act”). The Act defines the jurisdiction of the court. The jurisdiction is exercised by four divisions, namely the Civil (General Claims) Division, the Civil (Consumer and Business) Division, the Civil (Minor Claims) Division and the Criminal Division (see s 7(1)).
In the part of the Act headed “Division 3 - Jurisdiction of Court”, the civil jurisdiction of the court is defined in this way:
“Civil jurisdiction
8.(1) The Court has jurisdiction-
(a)to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed-
(i)if the claim is for damages or compensation for injury, damage or loss caused by, or arising out of, the use of a motor vehicle - $80,000;
(ii)in any other case - $40,000.
(b)to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $80,000;
(c)to hear and determine an interpleader action where the value of the property to which the action relates does not exceed $80,000.
(d)to grant any form of relief necessary to resolve a minor civil action.
(2)The parties to an action may waive any monetary limit on the civil jurisdiction of the Court, and, in that event, the Court will have jurisdiction to determine the action without regard to that limitation.”[2]
[2] Section 8 was amended to increase the monetary amounts from $30,000 and $60,000 to $40,000 and $80,000 respectively. These amendments came into force on 3 February 2002 and are operational for actions commenced on or after that date.
Also relevant is s 31 which provides:
“Alternative forms of relief
31.(1) Although a particular form of relief is sought by a party to an action, the Court may grant any other form of relief that it considers more appropriate to the circumstances of the case.
(2)In particular-
(a)where a party seeks relief by way of injunction or specific performance, the Court may award damages in addition to or in substitution for such relief;
(b)where a party seeks foreclosure of the equity of redemption in mortgaged property, the Court may instead of ordering foreclosure-
(i)direct the sale of the mortgaged property; or
(ii)direct a transfer of the mortgage debt and security to a person who agrees to assume the debt.
(This subsection is not exhaustive)”
In the claim filed by the respondents, the amount claimed is specified as “$30,000”, but as will have been seen from the prayer for relief at the foot of the particulars of claim, which I have quoted above, the respondents first seek an order for specific performance, followed by a claim an order for unspecified damages to be assessed.
In this case I think that there has been some confusion between damages which may be recoverable for breach of contract and compensation which may be payable by reason of the consequences of drainage of water off public streets or roads into adjacent land under s 316 of the Local Government Act.
Generally speaking, damages for breach of contract would normally be the subject of a one-off award, where a basis for such damages is established, which may be prospective in the sense that it may take into account damage which the plaintiff may suffer at some time subsequent to the making of the award.
However, here, although the claim pleaded by the respondents is for damages for breach of contract, counsel for the appellant conceded a liability to pay further compensation under s 316, at least with respect to the damage suffered in July 2000. Whether an award under s 316 can include a prospective allowance for the risks of future damage being suffered has not been the subject of argument before me, likewise, it is not clear to me whether the respondents abandon the claim for damages in favour of accepting an award of compensation under s 316. It may be that the respondents’ attitude to that question will depend upon the outcome of the challenge to the order for specific performance.
I return to the question whether or not the Magistrates Court in the exercise of its civil jurisdiction has power to make an order for specific performance. I have already referred to s 8 of the Act which defines the ambit of the civil jurisdiction of the court. The civil jurisdiction may be exercised in one of the three divisions set out in s 7 which provides:
“7(1) The Court is divided into the following Divisions:
(a)the Civil (General Claims) Division;
(b)the Civil (Consumer and Business) Division;
(c)the Civil (Minor Claims) Division;
(d)..........”
Section 8(1)(d) refers to a “minor civil action”. A minor civil action is defined in s 3(2) to mean:
“..... an action founded on-
(a)a small claim; or
(b)a claim for relief in relation to a neighbourhood dispute; or
(c)a minor statutory proceeding.”
The phrase “small claim” is separately defined in s 3(1) of the Act to mean a money claim for $6,000 or less.
This was not a minor civil action so that the jurisdiction which was exercised was that conferred by s 8(1)(a) of the Act considered in conjunction with s 31.
The civil jurisdiction of Magistrates Courts as provided in the Act was previously exercised by Local Courts.
Historically, it has been accepted that except where a specific and express conferral of equitable jurisdiction has been made on Local Courts, they were unable to exercise jurisdiction in equity as opposed to at common law.
Local Courts were first established in South Australia by Ordinance No 5 of 1850.[3] The Ordinance was repealed in 1861.[4] By s 23, the 1861 Act provided:
23.That Local Courts, subject to the limitation as to amount in the case of Courts of Limited Jurisdiction ..... shall have cognisance of all personal actions where the debt or damage claimed is not more than One Hundred Pounds, whether on a balance of account or otherwise; ......”
[3] See the history of their establishment in Hannan’s Local Court Practice (Williams) 2^nd ed 1973 at p 11.
[4] See Act No 15 of 1861.
In the context of that provision, in Shaw v Baker and Ors[5] the Full Court held that Local Courts had no equitable jurisdiction. See per Boucaut J[6]:
“The proposition that the Local Courts are empowered to administer the same broad principles of substantial justice as the Court of Chancery in Pawley v Turnbull,[7] although perhaps more arguable than the other proposition with which I have already dealt, is, in my opinion, equally unsupported by the Act or by authority. Local Courts are Courts of Law. It is true that in certain cases decisions of the Local Court as to be according to equity and good conscience; but that by no means makes them Courts of Equity, ...”
[5] (1885) 19 SALR 69.
[6] Ibid 82.
[7] (1861) 66 ER 327.
The 1861 Act was repealed by the Local Courts Act 1886[8] which contained a similar jurisdictional provision, albeit for a larger amount s 30 provides:
“Local Courts of Full Jurisdiction shall have cognisance of all personal actions where the debt or damage claimed is not more than Four Hundred and Ninety Pounds, whether on a balance of account or otherwise; ......”
[8] See the Local Courts Act (Barlow, Adelaide, 1890).
Subsequent amendments to the 1886 Act did not relevantly change the provision as to the extent of the jurisdiction.
The 1886 Act was repealed by the 1926 Local Courts Act which in substance repeated the relevant provisions appearing in its predecessors, confining the jurisdiction of Local Courts of full jurisdiction to “all personal actions ..... whether on a balance of account or otherwise ...” albeit to a monetary maximum of £500.
Insofar as the 1926 Act and its predecessors referred to “personal actions”, the word action is a word which invariably referred to a proceeding in one of the common law courts as opposed to a suit in equity.
Section 8(1) of the 1991 Act, which superseded the earlier Acts to which I have referred, confers jurisdiction on the court to hear and determine:
“.... an action (at law or in equity) for a sum of money where the amount claimed does not exceed ... etc”
The expression “action in equity”, while strictly inappropriate to describe proceedings in equity, is qualified by the words which follow, namely “for a sum of money”.
In those circumstances, it does not seem to me that the equitable jurisdiction which is conferred would extend to a claim for equitable relief disassociated from a money claim.
Insofar as account must be taken of the provisions of s 31, it seems to me that that section is in its terms limited to dealing with forms of relief which may be granted in an action, rather than defining the basic jurisdiction which may be exercised by the court.
While it is true that in this case the claim filed by the respondents is for a money amount, when the respondents’ claimed specific performance of the contract or agreement alleged to have been entered into with the appellant, it does not seem to me that such a claim can properly be construed as a claim “for a sum of money” within the meaning of s 8(1)(a). The “form of relief” referred to in s 31(1) can only be a form of relief which is within the rubric of the parameters of the jurisdiction of the court defined by s 8.
I accept that this may mean that wider equitable relief might be open in the case of a minor civil action rather than in the case of an action in the Civil (General Claims) Division of the court. But that it is product of the fact that the jurisdiction of a minor civil action extends beyond monetary claims. By definition a minor civil action includes claims “... for relief in relation to a neighbourhood dispute” and actions founded on “a minor statutory proceeding”, which expression encompasses a variety of applications based on various statutes as set out in the definition of “minor statutory proceeding” in s 3.[9]
[9] They are the Fences Act 1975, Part 4 of the Second-hand Dealers Act 1995, certain applications under the Retail and Commercial Leases Act 1995, s 11(8) of the Second-hand Dealers and Pawnbrokers Act 1996, Part 5 of the Building Work Contractors Act 1995, and any other proceedings declared by statute to be a minor statutory provision.
It follows that, in my opinion, it was not open to the learned trial magistrate to make the order for specific performance which he pronounced in this case.
I would allow the appeal and quash the order under appeal insofar as it includes the order for specific performance. I would, however, uphold the order extending time under the Limitation of Actions Act.
Further, as I have indicated, I will discuss with counsel the question whether the respondents wish to pursue the claim for damages for breach of contract, or a claim for compensation under the Local Government Act, in which event I will fashion whatever order appears to be necessary in order to dispose of that aspect of the matter as well.
I mention that during the course of argument I referred to the fact that it might be open to transfer the proceedings to the District Court, where there would be no difficulty in pronouncing an order for specific performance in equity.[10] Insofar as a magistrate may order that civil proceedings commenced in a Magistrates Court may be transferred to the District Court,[11] I doubt that it would be proper for an action to be transferred after the trial has taken place in the Magistrates Court, and simply for the purpose of relief to be given which could not be given in the Magistrates Court.
[10] See District Court Act 1991, s 8.
[11] See Magistrates Court Act 1991, s 19(2).
Despite the amplitude of the powers which I may exercise on an appeal of this kind, [12] I do not think that it would be proper other than by consent to transfer the proceedings to the District Court at this stage.
[12] See SCR 96B.04(b) and SCR r 97.18.
However, I could conceivably quash the whole of the judgment under appeal and then order the proceedings to be transferred to the District Court so that they could be re-tried in that court. The power to pronounce an equitable decree of specific performance could then be exercised if thought fit.
After delivering these reasons, I will hear counsel on that aspect of the matter as well.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1987) 163 CLR 628 at 636.
2. Section 8 was amended to increase the monetary amounts from $30,000 and $60,000 to $40,000 and $80,000 respectively. These amendments came into force on 3 February 2002 and are operational for actions commenced on or after that date.
3.   See the history of their establishment in Hannan’s Local Court Practice (Williams) 2^nd ed 1973 at p 11.
4.   See Act No 15 of 1861.
5. (1885) 19 SALR 69.
6.   Ibid 82.
7. (1861) 66 ER 327.
8.    See the Local Courts Act (Barlow, Adelaide, 1890).
9.    They are the Fences Act 1975, Part 4 of the Second-hand Dealers Act 1995, certain applications under the Retail and Commercial Leases Act 1995, s 11(8) of the Second-hand Dealers and Pawnbrokers Act 1996, Part 5 of the Building Work Contractors Act 1995, and any other proceedings declared by statute to be a minor statutory provision.
10.    See District Court Act 1991, s 8.
11.    See Magistrates Court Act 1991, s 19(2).
12.    See SCR 96B.04(b) and SCR r 97.18.

[2002] SASC 218

9 July 2002