Mazzoni v Sorrento Family Practice Pty Ltd [No 3]

[2024] WADC 37

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MAZZONI -v- SORRENTO FAMILY PRACTICE PTY LTD [No 3] [2024] WADC 37

CORAM:   PALMER DCJ

HEARD:   ON THE PAPERS

DELIVERED          :   31 MAY 2024

FILE NO/S:   CIV 1079 of 2015

BETWEEN:   PHILIPPA MARY MAZZONI

Plaintiff

AND

SORRENTO FAMILY PRACTICE PTY LTD

First Defendant

EDWARD SAMIR BEBAWAY SOLOMAN

Second Defendant

EIHAB KAMIL BOULOS

Third Defendant

OSAMA MORIS TAKLA ESTEFANOUS

Fourth Defendant

Catchwords:

Courts and judges - Courts - Inferior courts - District Court - Jurisdiction of the District Court - Application to transfer proceedings in the District Court to the Supreme Court pursuant to the District Court of Western Australia Act 1969

Legislation:

District Court of Western Australia Act 1969 (WA)
Supreme Court Act 1935 (WA)

Result:

Order remitting proceedings in the District Court to the Supreme Court

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Poliwka Legal
First Defendant	:	Hotchkin Hanly Lawyers
Second Defendant	:	Hotchkin Hanly Lawyers
Third Defendant	:	Hotchkin Hanly Lawyers
Fourth Defendant	:	Hotchkin Hanly Lawyers

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

Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270

Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208

Healthy Nut Café Pty Ltd v Finn [2018] WADC 118

PALMER DCJ:

1. On 18 April 2024, Deputy Registrar Harman made orders that this action be listed before a judge so that the parties might seek an order by consent that the action be remitted to the Supreme Court of Western Australia.

2. On 30 April 2024, the parties filed a Memorandum of Consent Order consenting to orders remitting these proceedings to the Supreme Court pursuant to s 77 of the District Court of Western Australia Act 1969 (WA) (District Court Act).  On the same day, the defendants filed submissions in support of the orders sought and wrote to the court on behalf of the parties asking that the matter be determined on the papers.

3. The Memorandum of Consent Order has been referred to me to consider whether to make the orders sought.  I am satisfied that the orders sought should be made for the following reasons.

4. Section 77 of the District Court Act provides:

   Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court.

5. As Gillan DCJ observed in Healthy Nut Cafe Pty LtdvFinn,[1] the power to remit is expressed in wide and discretionary terms and is not limited by its terms to only those matters for which a lack of jurisdiction in this court is able to be made out, although if there is any want of jurisdiction, an order to remit should be made.[2]

   [1] Healthy Nut Café Pty Ltd v Finn [2018] WADC 118 [13] (Healthy Nut Cafe).

   [2] Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270 [4] (Martin CJ); Healthy Nut Cafe [14].

6. In this case the order for remission is sought because the plaintiff seeks, amongst other things, injunctive relief and an account of profits for the breach of an alleged equitable duty of confidence.[3]  The plaintiff seems to accept that at least some of the questions of law and the relief sought are of an equitable nature.

   [3] Statement of Claim, pars 12 and 24A; Defendants' Submissions Written Outline of Submissions in Support of Remittal dated 30 April 2024.

7. The District Court has limited jurisdiction to grant equitable relief pursuant to s 55 and s 57 of the District Court Act and s 25 of the Supreme Court Act 1935 (WA). The power to grant equitable remedies is in the nature of an ancillary or auxiliary power to be exercised in the determination of claims otherwise within the jurisdiction of the court.[4]

   [4] Commercial DevelopmentsPty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 217; Chianti [52].

8. The defendants maintain that the District Court lacks the power to grant the equitable remedies sought by the plaintiff.[5]  It is not apparent to me how the relief sought is ancillary or auxiliary and the plaintiff has not sought to explain why this might be the case.  Instead, he has agreed to orders for the proceedings to be remitted to the Supreme Court.

   [5] Letter from Hotchkin Hanly to District Court of Western Australia dated 30 April 2024.

9. On the material presently before me it seems doubtful that the District Court has the power to grant part of the relief sought by the plaintiff.  In such circumstances, it seems appropriate to me that I make the orders agreed.  It appears to me that the nature of these proceedings and the questions of law raised are such that it is appropriate that the order for remission be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN

Associate to Judge Palmer

29 MAY 2024