Freeman v McCabe

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   FREEMAN & ANOR -v- McCABE & ORS [2008] WADC 125

CORAM:   SWEENEY DCJ

HEARD:   27 FEBRUARY 2008

DELIVERED          :   Delivered Extemporaneously on 27 FEBRUARY 2008 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 114 of 2007

BETWEEN:   SANDRA PEARL FREEMAN

First Applicant

MERRYL GAI ROTHENBURY
Second Applicant

AND

MICHAEL JOHN McCABE
First Respondent

SCENIC ASSET PTY LTD
Second Respondent

URSULA KARINE WACHMER
Third Respondent

Catchwords:

Application to transfer matter from Magistrates Court to District Court

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 39

Result:

Matter transferred to District Court

Representation:

Counsel:

First Applicant               :     Mr T R Thies

Second Applicant          :     Mr T R Thies

First Respondent           :     Mr R Garas

Second Respondent      :     Mr R O'Brien

Third Respondent          :     Mr R O'Brien

Solicitors:

First Applicant               :     Timothy R Thies

Second Applicant          :     Timothy R Thies

First Respondent           :     Paiker & Overmeire

Second Respondent      :     Allens Arthur Robinson

Third Respondent          :     Allens Arthur Robinson

Case(s) referred to in judgment(s):

Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993

National Australia Bank Ltd v Maher (No 2) [1999] 3 VR 589

1. SWEENEY DCJ: This is an application on the part of the plaintiff to have a Magistrates Court matter transferred to the District Court pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004 ("the Act").

2. Section 39(1) provides:

   "In this section, 'superior court' means the District Court or the Supreme Court."

3. Section 39(2) provides:

   "A party to a case in the Court may apply to a superior court for an order that all or part of the case be transferred to the superior court."

4. Section 39(4) provides:

   "The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and –

   (a)involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or

   (b)should be dealt with by the superior court because of its complexity or because of a question of law involved."

5. Section 39(7) provides:

   "If an order is made under subsection (4) the superior court is to deal with the case as if it had been commenced in that court."

6. This application is confined to s 39(4)(a), namely the limb dealing with a matter which involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction. It is not suggested that the case should otherwise be dealt with by this Court because of its complexity or because of a question of law involved.

7. The plaintiffs also seek an order that the minute of statement of claim attached to the plaintiffs' solicitor's affidavit stand as the statement of claim in this Court as against the second and third defendants.  No such application is made in respect of the first defendant but the reason for that is clear, namely that a…