| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 2010/03876
| NAMBERRY CRAFT PTY LTD (ACN 075 497 540) AND MARK PEZZIN | Plaintiffs |
| v | |
| DANIEL ANDREW WATSON | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOUNE | |
DATE OF HEARING: | 29 MARCH 2011 | |
DATE OF JUDGMENT: | 12 APRIL 2011 | |
CASE MAY BE CITED AS: | NAMBERRY CRAFT v WATSON | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 136 | |
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Practice and Procedure — Judicial Review of Orders made by Magistrates’ Court - Application for amendment of pleadings – Circumstances in which Certiorari or Prohibition may issue in respect of grant of amendments – Delay in resumption of trial - Explanation for delay – Prejudice - Jurisdiction of Magistrates’ Court to grant amendments - Rules 1.12, 35.02 Magistrates' Court Civil Procedure Rules 2009 – Rules 36.01, 36.03 Supreme Court (General Civil Procedure) Rules2005 - Aon Risk Services Australia v Australian National University [2009] HCA 27 considered and applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D.J. Christie | Wotton + Kearney |
| For the First Defendant | Mr L.M. Watts | Rose Mary Brondolino & Co |
| For the Second Defendant | No Appearance |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
The Facts Open to be Found........................................................................................................ 4
The Role of Certiorari and Prohibition...................................................................................... 7
Aon Risk Services Australia v ANU............................................................................................... 9
Jurisdiction to Grant the Amendment..................................................................................... 12
Discretion to Amend................................................................................................................... 19
Doing Justice Between the Parties........................................................................................... 20
Delay........................................................................................................................................ 20
Costs......................................................................................................................................... 22
Unfair and Non-Compensable Prejudice................................................................................. 22
Case Management Issues......................................................................................................... 22
Public Confidence.................................................................................................................... 23
Explanation for Amendment................................................................................................... 23
Conclusion and Orders.............................................................................................................. 24
HIS HONOUR:
Introduction
“Kahuna” is a Hawaiian word which can be used to describe a "priest, sorcerer, magician, wizard, or expert in any profession”.[1] “The Big Kahuna” in surfing language can be traced back to the 1959 film Gidget, where the name was applied to the leader of a group of surfers. From that origin, it evolved to describe the best surfer on the beach.
[1]Pukui & Elbert (1986).
Surfing is a pleasurable pastime but it is well stocked with chance. Sandbars, rocks, reefs, marine creatures and perhaps above all, other surfers, combine with the ever present challenges of unpredictable wave patterns.
Considerations such as these, no doubt, also inspired adoption of the name “The Big Kahuna” by certain syndicates of investors in the Australian lottery known as “Tattslotto”. In particular, the name was used by syndicates of persons who were accustomed to purchasing shares in large Tattslotto drawings from an agency conducted by the First Plaintiff, Namberry Craft Pty Ltd (“Namberry Craft”), and its director and business proprietor, the Second Plaintiff, Mark Pezzin (“Mr Pezzin”).
On 1 November 2008, in Tattslotto draw number 2847, the sorcery worked for “The Big Kahuna”. The syndicate won a total of $867,000. The Defendant, Daniel Watson (“Mr Watson”) claims that he was a member of The Big Kahuna syndicate for that draw, and is entitled to 10% of the winnings less the cost of his share…
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- Case
- [2011] VSC 136
- Decision Date
CaseChat Overview and Summary
In addressing these issues, the court considered the principles outlined in Aon Risk Services Australia v Australian National University and the relevant procedural rules under the Magistrates' Court Civil Procedure Rules 2009 and the Supreme Court (General Civil Procedure) Rules 2005. The court held that the Magistrates’ Court did have the jurisdiction to grant amendments under certain conditions, but the granting of such amendments needed to be scrutinized to ensure it did not unfairly prejudice the other party. The court also examined the delay in resuming the trial and Watson's explanation for the delay, weighing these factors against the potential for prejudice. Ultimately, the court found that the Magistrates’ Court's decision to allow the amendments was not an abuse of its discretion, and therefore, the application for certiorari or prohibition was not warranted.
The Supreme Court dismissed the originating motion, concluding that the Magistrates’ Court had acted within its jurisdiction and that the granting of amendments did not result in undue prejudice to Watson. The court emphasized that the Magistrates’ Court's decision should be respected unless there was a clear demonstration of an error in law or a significant procedural unfairness. The final orders were that the originating motion should be dismissed, and the case would proceed as amended in the Magistrates’ Court.
Orders
Orders of the court
The originating motion should be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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