Extrastock Pty Limited v Dun and Bradstreet (Australia) Pty Limited

[2006] NSWSC 59

CITATION:	Extrastock Pty Limited v Dun & Bradstreet (Australia) Pty Limited [2006] NSWSC 59
HEARING DATE(S):	15 February 2006
JUDGMENT DATE :	22 February 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The application to amend the summons is refused; the summons is dismissed; the question of costs is reserved and that question is referred to a registrar for determination.
CATCHWORDS:	Confusion as to order made by magistrate in chambers - appeal from interlocutory order (to grant a stay of proceedings) brought out of time - alleged denial of natural justice and lack of reasons - extension of time and leave.
LEGISLATION CITED:	Local Court (Civil Claims) Act 1970 (NSW), s18 Service and Execution of Process Act 1992 (Cth), s20
PARTIES:	Extrastock Pty Limited (Plaintiff) Dun & Bradstreet (Australia) Pty Limited (Defendant)
FILE NUMBER(S):	SC 13756/05
COUNSEL:	Mr A Lakeman (Plaintiff) Mr P Strasser (Defendant)
SOLICITORS:	Mackintoshs (Plaintiff) S J Gurnsey & Co (Qld) (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	12433/04
LOWER COURT JUDICIAL OFFICER :	Lulham LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

22 February 2006

13756 of 2005 Extrastock Pty Limited v Dun & Bradstreet (Australia) Pty Limited

JUDGMENT

1 His Honour: The plaintiff retained the services of the defendant in respect of an alleged overseas debt. A settlement took place between the defendant and the debtor. A dispute then arose between the plaintiff and the defendant concerning the nature of the retainer.

2 The plaintiff commenced proceedings in the Local Court (a statement of claim being filed on 12 November 2004).

3 On 26 November 2004, the defendant filed a notice of motion. It sought an order that the matter be transferred to the jurisdiction of the Queensland Magistrates Court pursuant to s18 of the Local Court (Civil Claims) Act 1970 (NSW). It was supported by an affidavit.

4 There is no dispute between the parties that the order that was sought could not have been made. However, the court did have the power conferred by s20 of the Service and Execution of Process Act 1992 (Cth) where it was satisfied that a court of another State had jurisdiction to determine the matter. This provision conferred a discretionary power to order a stay of proceedings.

5 On 2 December 2004, the court wrote a letter to the plaintiff (to which a copy of the notice of motion was attached). It was signed by a registrar. The contents of the letter were as follows:-

I refer to the abovementioned and advise that the defendant has filed a Notice of Motion (attached) seeking orders pursuant to S.20 of the Service and Execution of Process Act 1992 that proceedings in this Court be stayed and that a court in the State of QUEENSLAND is the most appropriate court to determine the issues between the parties.
The Notice of Motion will be determined by a Magistrate in chambers at the expiration of fourteen (14) days from the date of this letter. Therefore, you should ensure that any responses are received in the registry within fourteen (14) days from the date of this letter.
Please mark your responses to “Attention Court Section Manager”, and do not hesitate to contact the telephone enquiries line on 9287 7923 if you require any additional information.

6 The plaintiff did not object to the course that was outlined in the letter. It made a response within the specified time (an affidavit which put competing material before the Magistrate).

7 On 10 January 2005, a decision was made in chambers. Thereafter, some doubt arose as to what had actually been done by the Magistrate. However, it is sufficiently clear from the court file that what was done saw the granting of a stay of proceedings. A note in the handwriting of the Magistrate (Lulham LCM) and signed by him, is in the following terms:-

Stay of proceedings pursuant to Sec 20 appropriate court Queensland …

8 Unfortunately, by letter dated 17 January 2005, the Court advised the plaintiff as follows:-

An order has been made pursuant to Section 18 of the Local Courts (Civil Claims) Act 1970 for the change of venue in this matter to the Local Court at Queensland.

The contents of this letter have been said to have influenced the subsequent conduct of the plaintiff.

9 Later communications from the Court also served to add to the confusion that the earlier correspondence had created.

10 On 10 February 2005, the plaintiff filed a notice of motion. It sought relief to the effect that the order made by the Registrar on 17 January 2005 be reviewed. The notice of motion came before the Court on 17 March 2005. Both parties were represented by counsel.

11 A view was formed by the legal representatives of the plaintiff that the notice of motion was doomed to failure. As a result, it was withdrawn and dismissed.

12 The reasoning process behind the forming of this view is somewhat unclear. The fact that the order had been made by a magistrate and not by a registrar may have had some impact (the power of review exists in respect to a decision made by a registrar). A letter from the solicitors for the plaintiff (which is dated 24 March 2005) evidences that it may have been thought to be doomed to failure because the order to which the motion was directed had never been made.

13 Whilst it has not been the subject of any evidence or submissions, it would appear that the legal advisors failed both at the time to consider the prospect of an amendment of the notice of motion or subsequently to bring a further application seeking to set aside the order that had been made by the Court.

14 On 19 August 2005, the plaintiff filed a summons in this court. The summons came on for hearing on 15 February 2006. The only challenge that was pressed at the hearing was to the decision made on 10 January 2005. It was made on the basis that there had been error in point of law. There seems to have been a belated appreciation that the decision may have been of an interlocutory nature.

15 On the day of the hearing, the plaintiff sought to file in court an amended summons. It contained additional prayers for relief. One was an extension of time in which to bring the appeal. The defendant did not oppose that amendment. Another was the seeking of leave on the basis that the decision concerned an interlocutory order. The defendant opposed the plaintiff being allowed to amend its summons on that matter at such a late stage.

16 The course was taken of deferring the decision on the question of amendment. The court then heard the appeal (including submissions on the questions of extension of time and the granting of leave).

17 There is no dispute that a stay of proceedings is an interlocutory order. There is no dispute that leave is required if the subject of the appellate challenge is an interlocutory order.

18 The plaintiff takes the stance that it has exhausted all other avenues to challenge the decision in the Local Court. Accordingly, it says that an appeal to this court was the only course open to it. I do not accept that submission.

19 I shall put the questions of extension of time and the granting of leave to one side and first concentrate on what may be regarded as the merits of the appeal.

20 The plaintiff raises a number of matters in support of its challenge (these are identified in written submissions). One is that the Local Court did not address the relief sought in the defendant’s notice of motion (rather, it granted relief under another statutory provision). There are complaints about denial of natural justice and absence of reasons. There is a complaint about the correctness of the decision. In my view, none of the matters that were raised would justify a disturbing of the decision of the Local Court.

21 I shall briefly deal with certain of the matters that were argued.

22 Whilst the Local Court did grant relief other than that which was sought in the notice of motion, the relief granted was relief within the power of the Local Court.

23 The Local Court gave reasonable notice to the parties that it proposed to deal with the notice of motion on the basis that relief was being sought pursuant to s20 of the Service and Execution of Process Act (a stay of proceedings). It also gave the parties a reasonable opportunity to put material before it (by way of evidence or submissions).

24 The plaintiff did not object to the course being taken by the Court (it could have done so pursuant to the provisions of s20). Instead, it took advantage of the opportunity to present the material that it intended to rely on.

25 In the absence of objection, s20 enables the application to be dealt with by the court without a hearing. In this case, there was a hearing in the sense that the parties were given an opportunity to be heard even though the matter was to be dealt with in chambers.

26 These days, in busy courts, it is not unusual for matters to be dealt with on the papers in chambers.

27 It is true that the disclosure of reasoning process may be seen in terms of a quintessence of brevity. It was not a matter that called for detailed disclosure of reasoning process. The issue presented to the Court was abundantly clear (should the case be heard in Queensland). The basis for the decision was adequately disclosed (the appropriate court was in Queensland).

28 There was abundant material before the Magistrate to justify his discretionary decision (inter alia, the defendant was named in the statement of claim as having its address in Queensland, there was evidence of the contact having been made in Queensland, the performance of the retainer had taken place there and there were potential witnesses located in Queensland). In the circumstances of this case, I am not satisfied that there was error in the exercise of the discretion.

29 Whilst what has been said suffices to dispose of this appeal, I shall briefly refer to the other matters of extension of time and the granting of leave. I shall address them on the assumption that the appeal is not regarded as being hopeless.

30 The appeal is brought well out of time (in the order of about six months). Although there is no evidence of prejudice, what is offered to explain that delay falls short of being satisfactory. There were problems in getting access to the court file and there was confusion over what decision had been made by the Magistrate. There were changes of counsel, with one of the counsel being overseas for a time. Despite the suffering of these problems, it seems from the evidence that the plaintiff knew what the order was as early as March 2005. Thereafter, what was done inadequately addressed the situation.

31 There is a discretionary power to grant an extension of time. It is exercised having regard to the relevant circumstances of the particular case before the court and so that the dictates of justice are best served. The onus rests with the party seeking the extension of time to demonstrate an entitlement to relief. In my view, the plaintiff has failed to discharge that onus.

32 Accordingly, the appeal is incompetent for that reason alone.

33 What may be required to satisfy the granting of leave can be contentious. Questions of substantial injustice and manifest error are often regarded as relevant considerations. These factors are not present in this case.

34 The proceedings can be litigated in Queensland. There seems to be no real hardship to the plaintiff if that course is to be taken. The plaintiff had avenues in the Local Court to challenge the order. The only avenue pursued was the misconceived application made in February 2005.

35 It is not said that the case throws up any question of public significance or importance. There is no suggestion of the involvement of novel legal principle. The court is merely concerned with an exercise of discretion in relation to a matter of practice or procedure.

36 Again, the plaintiff bears the onus of demonstrating an entitlement to leave (another discretionary consideration). In my view, the plaintiff has failed to discharge that onus.

37 Accordingly, the appeal is also incompetent for that reason.

38 The application to amend the summons is refused. The summons is dismissed. The question of costs is reserved and I refer that question to a registrar for determination.

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