Eastern Districts Azzurri Sports Club v Harley No. DCCIV-97-516 Judgment No. D3628

[1997] SADC 3628

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Worthington (ex tempore)

Hearing

03/06/97.

Catchwords

CONTRACT Application to review decision in minor civil action - SM awarded respondent $3,000 for breach of contract by applicant club and rejected set-off of $3,000 fine on grounds that applicant in breach of rules of natural justice in imposing fine - held:this purported to be judicial review of the applicant's conduct - not within jurisdiction - on review:set-off not established on the facts - judgment stands.

Materials Considered

• Supreme Court Act 1935 ;
• Magistrates' Court Act 1991 , referred to.
• HINTON DEMOLITIONS PTY LTD v LOWER [1971] 1 SASR 512;
• GREENBERG v AUSTRALIAN ICE HOCKEY FEDERATION INC. (1994-1995) 179 LSJS 472, considered.

Representation

Applicant EASTERN DISTRICTS AZZURRI SPORTS CLUB INC.:
Counsel: MR D. AGRESTA - Solicitors: CARRINGTON CHAMBERS

Respondent DAMIEN LEON HARLEY:
Counsel: MR D. WILSON - Solicitors: DAVID H. WILSON

DCCIV-97-516

Judgment No. D3628

3 June 1997

On Appeal from MAGISTRATES' COURT

(Civil: Minor Civil Review)

EASTERN DISTRICTS AZZURRI SPORTS CLUB INC. v HARLEY

Civil

Judge Worthington

HIS HONOUR: This is an application to review the decision of a learned Special Magistrate of 4 April 1997, in a minor civil action in the Holden Hill Magistrates Court.

The respondent claimed $3000 pursuant to a contract to play for the applicant club for the period 30 November 1992 to 30 November 1993.It was a clause of the contract that he abide by the rules of the club and the Soccer Federation. For any misconduct or breach, the applicant could suspend him for a period of up to 14 days and fine him, notwithstanding any other action by the Federation.

It was agreed in the course of the hearing before the learned Special Magistrate that the quantum of $3000 would be appropriate at the end of the 1993 season, if the respondent was entitled to it.The applicant denied liability,asserting that the respondent was in breach of contract and for which it had fined him $3000. Her Honour referred to this fine as a counterclaim but perhaps it should be described as a set-off, since no demand was ever made for the $3000, at least in relation to this action.The learned Special Magistrate awarded the respondent $3000.

In short, the alleged breachwas that the respondent had engaged in negotiations with a Darwin soccer club and had trained with it, whilst under contract to the applicant,and that he had failed to attend a presentation night. The respondent denied those breaches.Evidence was called from a number of witnesses.Her Honour found that he was not in a breach by reason of any of those allegations.No challenge is made to that findingand clearly therefore, the respondent hasestablished his claim to the sum of $3000.

The challenge here is to the learned Special Magistrate's findings in relation to the set-off. Her Honour found that the $3000 fine could not be set-off against the claimbecause the committee of the applicant did not comply with the rules of procedural fairness at the meeting that imposed the fine.In short, her Honour held that there was a breach of natural justice by the applicant and therefore,the $3000 could not be taken into account.

Mr Agresta,for the applicant, submits that the learned Special Magistrate has purported to exercise a power of judicial review, which in his submission, is a jurisdiction the Magistrates Court does not possess, that therefore the finding is invalid and that therefore the set-off stands. The result of his submission is that the respondenthaving succeeded in his claim but the applicant having succeeded in the set-off, there should have beenno award to the respondent.

Mr Wilson, for the respondent,submits that it was not truly an exercise of judicial review but simply the court looking to the merits of the set-off and finding that the imposition of the fine did not accord with law, in particular, the common law requiring procedural fairness or natural justice, and that therefore the alleged set-off could not be taken into account.

In my opinion, the learned Special Magistrate has purported to exercise a jurisdiction not vested in the court.The supervisory jurisdiction to grant relief in the nature ofthe prerogative writs, now by way of judicial review, is an inherent jurisdictionof the Supreme Court (s.17 Supreme Court Act; Hinton v Lower [1971] 1 SASR 512).In my opinion, none of the provisions of the Magistrates Court Act confer such ajurisdiction and I do not accept that the conclusions of Mr Cannon SM to the contrary in Greenberg v Australian Ice Hockey Federation, (1994-95) 179 LSJS 472 are applicable.On that basis therefore I find that the learned Special Magistrate erred and I grant leave to review.

Section 38 of the Magistrates Court Act is the operative statutory basis for a review in this court.I refer tosub-s.(6) which provides,inter alia that the court may, if it appears just to do so, set aside the judgment and give any judgment that shouldhave been given in the first instance.Sub-s.(8) requires the court to act according to equity, good conscience and the substantial merits of the case.

The set off raised by the applicant, which happens to be in the form of a fine of $3000,is based on exactly the same allegations of fact as the denial of liability itself. The fact that it is a fine, as distinct from some other alleged debt, is not material for present purposes. A defendant must make good its defence including any set off or counterclaim. This is not an action by a club to enforce payment of a fine.In such a case, a member of the club might choose to seek the remedy of judicial review but this would need to be determined by the appropriate court. The plea by the applicantis simply a defence raised on the facts in relation to the claim. That defencefailed because of the findings of fact made by the learned Special Magistrate.Those findings apply equally to any relief sought to be based on those facts.That defence, including the set-off, has not been made out by the applicant and it must therefore fail.

For these reasons, I grant the application to review but I dismiss the application to set aside the judgment. I reserve the right to edit and amplify these reasons as necessary.

The respondent will have the costs of this review to be taxed or agreed.