| 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…
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- Case
- [2008] VSC 273
- Decision Date
CaseChat Overview and Summary
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.
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