Cooper Morison Pty Ltd v Tennozan Pty Ltd - [2008] VSC 273

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5939 of 2008

COOPER MORISON PTY LTD (ACN) 004 413 398)	Plaintiff
v
TENNOZAN PTY LTD (ACN 074 615 393)	First Defendant
and
THE MAGISTRATES’ COURT OF VICTORIA AT MELBOURNE	Second Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2008
DATE OF JUDGMENT:	19 June 2008 (Ex tempore oral reasons revised 18 July 2008)
CASE MAY BE CITED AS:	Cooper Morison Pty Ltd v Tennozan Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 273

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JUDICIAL REVIEW – Bill of exchange – Complaint thereon in the Magistrates’ Court – Leave to defend granted, allegedly out of time – Compliance with time limit held not to be a jurisdictional fact – Error of law on the face of the record not shown – Application for judicial review dismissed – Instruments Act, Part I – Magistrates’ Court Civil Procedure Rules 1999, Order 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Murphy	Rigby Cook Lawyers
For the Defendant	Mr A Phillips	Alderuccio Solicitors
For the Second Defendant	No appearance

HIS HONOUR:

This proceeding was commenced as an appeal pursuant to s 109 of the Magistrates’ Court Act 1989. However, the decision in question of the Magistrates’ Court was later perceived to be an interlocutory decision, as distinct from a final decision, and for that reason Master Daly made orders on 28 May 2008 permitting the plaintiff to convert the proceeding into an application for judicial review pursuant to Order 56 of the Supreme Court Rules. The plaintiff effectuated the permitted conversion by issuing an originating motion dated 30 May 2008.

The substantial relief or remedy sought in the originating motion is that “the decision made by his Honour Magistrate Lauritsen in proceeding no X006293555 in the Magistrates’ Court of Victoria at Melbourne on 2 April 2008 granting the first defendant leave to defend be set aside or quashed”.

The decision of Magistrate Lauritsen referred to in the originating motion was a decision under s 5(1) of the Instruments Act 1958 and Rule 24.04 of the Magistrates’ Court Civil Procedure Rules 1999 (“the Rules”) giving the first defendant leave to defend in a proceeding brought by the plaintiff in the Magistrates’ Court pursuant to the Instruments Act and Order 24 of the Rules. For convenience, I will refer to the first defendant as “the defendant” from here on. Appropriately, the second defendant, the Magistrates’ Court of Victoria, has taken no substantive part in the proceeding before me.

The underlying dispute between the parties relates to building work done by the plaintiff for the defendant at the defendant’s office premises in Flinders Lane, Melbourne. The defendant claims that flooring work done by a subcontractor to the plaintiff was unsatisfactory. The defendant admits issuing and delivering to the plaintiff a cheque for $47,799.21 on 17 December 2007. But it claims that it did so on the strict condition that the cheque would…

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: [2008] VSC 273
Decision Date: 19 June 2008

CaseChat Overview and Summary

Cooper Morison Pty Ltd sought judicial review of a decision by Tennozan Pty Ltd to dismiss its application for leave to defend a complaint in the Magistrates’ Court of Victoria. The complaint was in relation to a dishonoured bill of exchange. The parties had entered into a contract whereby Cooper Morison agreed to sell certain goods to Tennozan. As payment, Tennoson issued a bill of exchange, which Cooper Morison accepted. When Tennoson failed to pay the amount due on the bill, Cooper Morison issued a complaint in the Magistrates’ Court. Tennoson applied to defend the complaint but was refused leave to defend on the basis that the application was out of time. Cooper Morison sought judicial review of that decision.
The court considered whether the error alleged by Cooper Morison amounted to an error of law on the face of the record. The court held that the error was not an error of law but rather a question of fact, and therefore, not a jurisdictional error. The court also held that compliance with a time limit is not a jurisdictional fact and that an error of fact does not render a decision void. The court found that the Magistrates’ Court did not err in law in refusing leave to defend the complaint, as it was not shown that there was an error of law on the face of the record. The application for judicial review was dismissed.
The court dismissed the application for judicial review and noted that the Magistrates’ Court was not required to consider whether Cooper Morison had a reasonable excuse for the delay in applying for leave to defend. The court held that the error alleged by Cooper Morison was not an error of law but rather a question of fact, and therefore, not a jurisdictional error. The court further held that an error of fact does not render a decision void, and that compliance with a time limit is not a jurisdictional fact. The court held that the Magistrates’ Court did not err in law in refusing leave to defend the complaint, and that the application for judicial review was properly dismissed. The decision of the Magistrates’ Court was affirmed.

Orders