National Exchange Pty Ltd v Brown - [2004] VSC 108

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7505 of 2003

IN THE MATTER of an appeal under s 109 of the Magistrates' Court Act 1989

NATIONAL EXCHANGE PTY LTD	Appellant
V
KELVIN LAURENCE BROWN	Respondent

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2004, 15 March 2004
DATE OF JUDGMENT:	5 April 2004
CASE MAY BE CITED AS:	National Exchange Pty Ltd v Brown
MEDIUM NEUTRAL CITATION:	[2004] VSC 108

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MAGISTRATES – Appeal – Order for stay of proceeding under s20 of the Service and Execution of Process Act 1992 (Cth) not a final order under s109 of the Magistrates’ Court Act 1989 – Appeal dismissed as incompetent.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W. Stark	Griffin Law Firm
For the Respondent	Mr P. Over	Slater & Gordon

HER HONOUR:

This is an appeal under s 109 of the Magistrates' Court Act 1989 from an order made on 7 August 2003 by Mr M L Smith M at the Magistrates' Court at Melbourne staying proceeding number R00605367 (“the proceeding”). The proceeding was between the appellant as plaintiff and the respondent as defendant and it was stayed on the respondent’s application under s 20 of the Service and Execution of Process Act 1992 (Cth) (“the Act”).

S 20 Service and Execution of Process Act 1992 (Cth)

Part 2 of the Act applied at all relevant times to civil proceeding in a court, including the Magistrates’ Court of Victoria. S 20(2) provided that a person served with initiating process might apply to the court for an order staying the process.

S 20(3) and (4) of the Act were in the following form:

“S20
(3) The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)the place where the subject matter of the proceeding is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e)the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;

but do not include the fact that the proceeding was commenced in the place of issue.”

The application

By the complaint filed on 17 March 2003 the appellant plaintiff had claimed damages in the sum of $363.34 against the respondent defendant in relation to an alleged breach of a contract…

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.

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Details

Case: [2004] VSC 108
Decision Date: 5 April 2004

CaseChat Overview and Summary

In the case of National Exchange Pty Ltd v Brown, the appeal arose from a decision made by a magistrate to stay a proceeding under section 20 of the Service and Execution of Process Act 1992. The appellant, National Exchange, challenged the decision, arguing that the order to stay the proceeding was a final order under section 109 of the Magistrates’ Court Act 1989, which should have allowed them to appeal directly to the Court of Appeal. The respondent, Brown, contended that the order was not a final order and that the appeal should be dismissed as incompetent.

The primary legal issue before the court was whether the order for a stay of proceeding constituted a final order under section 109 of the Magistrates’ Court Act 1989, thereby allowing an appeal to the Court of Appeal. The court was required to determine the nature of the order and its implications under the relevant legislation. Specifically, the court had to ascertain whether the order had the effect of finality, which would entitle the appellant to an appeal directly to the Court of Appeal, or if it was an interim order that required further proceedings before it could be considered final.

The court considered the provisions of the Service and Execution of Process Act 1992 and the Magistrates’ Court Act 1989. It held that the order for a stay of proceeding under section 20 of the former act was not a final order as it did not have the effect of finality required under section 109 of the latter act. Consequently, the court dismissed the appeal as incompetent. The court reasoned that the order was an interim measure and did not resolve the substantive issues of the case, thus it did not qualify as a final order under the act.

The court’s decision concluded that the appeal was incompetent because the order for a stay of proceeding was not a final order. Consequently, the appeal was dismissed, and no further orders were made. The court confirmed that for an appeal to proceed to the Court of Appeal, the order in question must have the effect of finality as defined by the relevant legislation.

Orders