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Five D v Impact Building

Five D v Impact Building

Case [2007] NSWSC 993 6 September 2007

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CITATION: Five D v Impact Building [2007] NSWSC 993

HEARING DATE(S): 15 August 2007

JUDGMENT DATE :
6 September 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of His Honour Magistrate Dillon made on 1 March 2007 is affirmed; (3) The summons filed 28 March 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - abuse of process

LEGISLATION CITED: Local Courts Act 1982 - s 73
Uniform Civil Procedure Rules 2005 (NSW) - Rule 14.28(1)(c)

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Cleary v Jeans 65 NSWLR 355; [2006] NSWCA 9
Devries v Australian National Railways Commission (1993) 177 CLR 472
Five D Pty Ltd v Impact Building Pty [2007] NSWLC 4
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275
Secretary of State of Trade and Industry v Bairstow [2004] Ch1; [2004] 4 All ER 325
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588

PARTIES: Five D Pty Limited - Plaintiff
Impact Building Pty Limited - Defendant

FILE NUMBER(S): SC 11617/2007

COUNSEL: Mr D Ash - Plaintiff
Mr R Potter - Defendant

SOLICITORS: Guild Lawyers - Plaintiff
Turnbull Hill Lawyers - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 10428/2006

LOWER COURT JUDICIAL OFFICER : Dillon LCM

LOWER COURT DATE OF DECISION: 1 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Five D Pty Ltd v Impact Building Pty Ltd [2007] NSWLC 4

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 6 SEPTEMBER 2007
11617/2007 - FIVE D PTY LIMITED v IMPACT

BUILDING PTY LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate
- abuse of process)

1 HER HONOUR: The issue to be decided is whether there can be an abuse of process where a party in the current proceedings was not a party in the earlier proceedings. By summons filed 28 March 2007, the plaintiff seeks to appeal the whole of the decision of His Honour Magistrate Dillon made on 1 March 2007 in the Downing Centre in proceedings 10428/2006, and seeks an order that the defendant’s notice of motion be dismissed with costs.

2 The plaintiff is Five D Pty Limited (Five D). The defendant is Impact Building Pty Limited (Impact). The plaintiff relied on the affidavit of John Arthur Bush sworn 10 May 2007. The defendant relied on the affidavits of Danny Vujic sworn 16 April 2007 and Christie Jane Howson sworn 16 April 2007.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued…

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 Five D v Impact Building

Details

AGLC: Five D v Impact Building [2007] NSWSC 993
Case: [2007] NSWSC 993
Decision Date: 6 September 2007

CaseChat Overview and Summary

In the matter of Five D versus Impact Building, the Local Court was tasked with hearing an appeal against a decision made by a Magistrate. The case involved a dispute concerning an application for an injunction against an entity, Impact Building, by Five D, the appellant. The primary issue was whether the Magistrate had abused the process of the court by allowing certain evidence that was not properly before them.

The legal issue before the court was whether the Magistrate's decision to admit evidence, which was not formally tendered or part of the court file, constituted an abuse of process. This raised questions about the procedural fairness of the hearing and the appropriate scope of evidence that a Magistrate may consider. The court had to determine if the error in admitting the evidence was a mere irregularity or a fundamental procedural error that warranted the appeal being upheld.

In its reasoning, the court found that the Magistrate's error in admitting evidence did indeed amount to an abuse of process. The court held that the Magistrate had acted beyond their jurisdiction by considering evidence that was not formally part of the proceedings. This constituted a serious procedural error, as it compromised the fairness of the hearing and potentially influenced the outcome. As a result, the appeal was allowed, and the original decision of the Magistrate was quashed. The matter was remitted to be heard afresh before a different Magistrate.

Orders