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Dawson v Bethonga

Dawson v Bethonga

Case [2009] VSC 172 28 April 2009

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10517 of 2008

FREDERICK REX DAWSON, FELICITY ANNE DAWSON, BRADLEY REX DAWSON and ASHLEY JOHN DAWSON trading as “F Dawson & Sons”	Plaintiffs
and
BETHONGA WHOLE FOODS PTY LTD (ACN 095 097 644)	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA AT MILDURA	Second Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2009
DATES OF JUDGMENT:	28 April 2009 (Reasons given orally: revised 30 April 2009) and 30 April 2009 (costs certificate).
CASE MAY BE CITED AS:	Dawson v Bethonga
MEDIUM NEUTRAL CITATION:	[2009] VSC 172

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PRACTICE AND PROCEDURE – Pleadings – Counterclaim – Contract claims in Magistrates’ Court – Failure by counterclaimant to plead material facts – Omission of vital contractual terms – Numerous other defects – Magistrate ordering further particulars rather than striking out pleadings with leave to re-plead – Principles of pleading not properly appreciated and applied – Certiorari – Non-jurisdictional error on the face of the record – Magistrate’s decision quashed – Magistrates’ Court Civil Procedure Rules s 9A.02(1)(c).

COSTS – Costs should follow the event – Not appropriate in this case to defer entitlement to recover costs in the hope of encouraging settlement of Magistrates’ Court proceeding.

COSTS – Application for indemnity certificate – Whether proceeding an “appeal” or “in the nature of an appeal” – Certificate granted – Appeal Costs Act 1998 ss 3 (definition of “appeal”) and 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E. Wheelahan	Martin Irwin & Richards Lawyers
For the First Defendant	Mr R. J. Anderson	Kliger Partners

HIS HONOUR:

28 April 2009

This is a proceeding brought by originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff seeks relief in the nature of certiorari to quash the interlocutory orders made by the Magistrates’ Court at Mildura on 29 October 2008 in proceeding no X00323021. The plaintiff further seeks an order that the matter be remitted to the Magistrates’ Court and that the plaintiffs’ application to the Magistrates’ Court dated 8 July 2008 be considered in accordance with law. The originating motion also seeks such further relief as this Court might think fit.

The underlying proceeding in the Magistrates’ Court is brought by the plaintiffs for monies allegedly due and owing for contract packing services and purchase of labels. The amount claimed is $24,374.39. The proceeding was commenced on 6 February 2008. The first defendant filed a notice of defence dated 29 February 2008 and a counterclaim dated 19 March 2008.

On 8 July 2008 the plaintiffs filed an application in the Magistrates’ Court for orders, among others, that the defence and counterclaim of the first defendant be struck out pursuant to rule 9A.02(1)(c) of the Magistrates’ Court Civil Procedure Rules 1999 on the grounds, among others, that the first defendant’s pleadings and particulars were prejudicing, embarrassing and delaying the fair hearing of the proceeding or the plaintiffs’ proper preparation for…

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 Dawson v Bethonga

Details

AGLC: Dawson v Bethonga Wholesale Foods Pty Ltd [2009] VSC 172
Case: [2009] VSC 172
Decision Date: 28 April 2009 (Reasons given orally: revised 30 April 2009) and 30 April 2009 (costs certificate).

CaseChat Overview and Summary

Dawson, the plaintiff, filed a claim against Bethonga, the defendant, in the Magistrates' Court, seeking damages for alleged breaches of contract. Bethonga responded with a counterclaim for damages, also stemming from the same contract. The case was brought before the court to address several critical procedural issues, including the sufficiency of the pleadings in Bethonga's counterclaim. Notably, Bethonga omitted material facts and failed to plead crucial contractual terms, leading to numerous defects in the pleadings.

The court had to decide whether the Magistrate was correct in ordering further particulars instead of striking out the pleadings with leave to re-plead. The court examined the principles of pleading and determined that the Magistrate did not properly appreciate and apply these principles. The Magistrate's decision was found to constitute a non-jurisdictional error on the face of the record. Consequently, the court quashed the Magistrate's decision under section 9A.02(1)(c) of the Magistrates' Court Civil Procedure Rules.

The court further addressed the issue of costs, finding it inappropriate to defer the entitlement to recover costs in the hope of encouraging a settlement of the Magistrates' Court proceeding. The court granted an indemnity certificate under sections 3 and 4 of the Appeal Costs Act 1998, determining that the proceeding was an "appeal" or "in the nature of an appeal." This decision underscores the importance of proper pleading and procedural adherence in litigation.

Orders