P B & E L Wright Pty Ltd v Craig Martin Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. N00837241

In the Matter of an Appeal under s. 109 of the Magistrates Court Act 1989

Between:

P.B. & E.L. Wright Pty Ltd	Appellant
v
Craig Martin Pty Ltd	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 May 2002
DATE OF JUDGMENT:	7 August 2002
CASE MAY BE CITED AS:	P.B. & E.L. Wright Pty Ltd v Craig Martin Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 304

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Magistrates’ Court: appeal from final order of court, analysis of and true meaning of judgment, power invested in court under s. 110(1) and (2) of Magistrates’ Court Act on application of a fourth party where on trial of proceedings including third and fourth party proceedings final orders made against fourth party who did not appear, extent of discretion under s. 110(2) of Magistrates’ Court Act: no error of law on finding of fact.

Magistrates’ Court Act ss. 109, 110(1)-(4).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.A. Scarfo	Di Mauro Solicitors
For the Respondent	Mr S. Wilson QC with Mr G. Meehan	Geoffrey Dillon & Co

HIS HONOUR:

The proceeding before the Court is an appeal brought pursuant to s. 109 of the Magistrates’ Court Act 1989 and pursuant to the procedure under Part 3 of Order 58 of the General Civil Procedure Rules of this Court. The appeal is brought against an order made in the Magistrates’ Court at Melbourne on 20 August 2001 in a proceeding numbered P0014731 (which in this judgment I shall refer to as “the second proceeding”) and in which the appellant, P.B. and E.L. Wright Pty Ltd (“Wright”), was plaintiff and the respondent, Craig Martin Pty Ltd (“Martin”), was defendant. On that day and in that proceeding, it was ordered that the application of the plaintiff, Wright, for summary judgment against the defendant be refused and that Wright pay to Martin costs fixed at $3,653 together with reserved costs of 23 April 2001 fixed in the amount of $600. It was further ordered that the application of the defendant, Martin, brought in those proceedings to strike out the proceedings, be granted and “that proceeding P0014731 is struck out”. On that day and in Proceeding No. N00837241 (which in this judgment I shall refer to as “the first proceeding”) in which Booran Motors Sales Pty Ltd (“Booran”) was the plaintiff, Martin was the defendant, Wright was the third party and one John Flack was the fourth party, an application brought by Wright, the third party, against Booran, plaintiff, was refused and Wright was ordered to pay Booran costs fixed at $2,263. The order in Proceeding No. N00837241 is not the subject of this appeal, but the proceeding before the Magistrates’ Court in that proceeding and orders made by the Court in that proceeding are relevant to have regard to as they provide the background to and a better understanding of the nature of the proceeding numbered P20014731 and the orders made by the Magistrate in that proceeding on 20 August 2001 which is the subject of this appeal. Part of the history of the second proceeding is set out by the Master to his order made on this appeal on 11 October 2001 as recited under “Other Matters” although, in my view, sub-paragraph (b) does not accurately represent the order made on 18 December 2001 to which I shall later refer.

It is to the history of Proceeding No. N00837241 (the first proceeding) and orders made in that proceeding that I first turn to. In that proceeding, it was alleged that on a date before March 1998 Flack purchased a Mercedes motorcar from Wright, a licensed motorcar trader and, in part payment for the purchase, Flack traded in a Holden motorcar. Following that event and on or about 25 March 1998 Wright sold the Holden motorcar to Martin, a wholesale motorcar trader. On or about 3 April 1998 Martin, in turn, sold the Holden motorcar to Booran, a motorcar trader, which, in turn, sold the motorcar to one Schirato who paid approximately $31,500 for the Holden motorcar. Thereafter, Schirato was informed by an officer of the Victorian Police Force that the Holden motorcar was a stolen motorcar or had stolen parts fitted to it. The police took possession of the Holden motorcar. Between May and October 1999 Schirato made demand on Booran for compensation for the loss of the Holden motorcar and, on that demand, Booran paid to Schirato in compensation the sum of $28,603.28.

On 28 April 2000 Booran issued proceedings in the Magistrates’ Court at Dandenong against Martin claiming damages. That proceeding is the proceeding numbered N00837241 (the first proceeding). In that proceeding Booran alleged that Martin had no right or title to sell the Holden motorcar to it. Martin defended that claim. On 29 May 2000, in the first proceeding, Martin issued third party proceedings against Wright alleging breach of agreement in that Wright had no right or title to sell the Holden motorcar to it. In July 2000 Wright, in the first proceeding, issued a “Notice to Obtain Relief” against Flack in accordance with Rule 8.07 of the Magistrates’ Court Civil Procedure Rules 1999 seeking to obtain relief against him in respect of the claim made by Martin against it. The proceeding issued by Wright against Flack was, in substance, a fourth party claim. In that proceeding Wright alleged that Flack had engaged in misleading or deceptive conduct and had acted in breach of the contract between them. Wright alleged that Flack had no right to sell the Holden motorcar by way of trade-in as part payment for the purchase of the Mercedes motorcar. In that fourth party proceeding Flack filed a Notice of Defence.

On 12 September 2000 the first proceeding came on for hearing before the Magistrates’ Court at Dandenong as constituted by Magistrate Hallenstein. Flack did not appear in person at the trial nor was he legally represented before the Court. On the first proceeding being part-heard on 12 September 2000, it was adjourned to 19 September 2000. On that latter day, it was found by the Magistrate that the Holden motorcar that had been traded in by the fourth party, Flack, to the third party, Wright, and then, in turn, sold to the defendant, Martin, who, in turn, sold it to the plaintiff, Booran, was a stolen motorcar. It was ordered by Magistrate Hallenstein that the defendant, Martin, pay to the plaintiff, Booran, $28,602.28 and interest in the sum of $1,330.06 and costs fixed at $3,546; that, in the third party proceeding, Wright pay to Martin $28,602 together with interest of $1,330.16 and costs and that the third party, Wright, pay the costs of the defendant, Martin, of and incidental to the third party proceedings in the sum of $4,180 and that on the fourth party proceeding that the fourth party, Flack, indemnify the third party to the extent of $28,602.28 together with the plaintiff’s costs fixed in the sum of $7,726 and interest in the amount of $1,330.16 and, further, that the fourth party pay to the third party costs of and incidental to the fourth party proceeding fixed in the sum of $3,351.

On 23 October 2000 Wright paid to Martin the sum of $4,180 being the costs ordered to be paid by it to the defendant. On 24 October 2000 Wright paid to the solicitors for Booran the sum of $3,478 in part payment of the sum ordered to be paid by Martin to Booran and forwarded to the solicitors for Martin a cheque in the sum of $30,000 payable to the solicitors for Booran and being the balance of the moneys ordered to be paid by Martin to Booran. Those payments by Wright to Booran were paid by Wright at the direction and request of Martin.

On 4 December 2000, in the first proceeding, Flack issued an application for re-hearing. That application was made returnable before the Magistrates’ Court at Melbourne on 18 December 2000. The application, on its face, was directed to the Registrar of the Magistrates’ Court at Dandenong to the plaintiff, Booran, to the defendant, Martin, and to the third party, Wright. In that notice it stated:

“I did not appear at the hearing of the above complaint, third party notice and fourth party notice. The Court on 19 September 2000 in my absence made an order against me for the third parties’ costs of and incidental to the fourth party proceedings fixed in the sum of $3,351 together with an order that I indemnify the third party to the extent of $28,602.28 together with the plaintiff’s costs fixed in the total sum of $7,726 and interest in the amount of $1,330.16.
Take Notice that on I intend to apply to the Court for an order that that order be set aside and the complaint, third party notice and fourth party notice be re-heard as soon as possible.
I did not appear at the hearing for the following reasons:
Neither did I nor my solicitors receive any notification of the hearing of the proceedings and was unaware that the proceedings were set down for hearing.
My solicitors filed and served a Notice of Defence of the fourth party notice by facsimile transmission on 28 July 2000.”

The application of the fourth party was brought pursuant to s. 110 of the Magistrates’ Court Act. Section 110(1)-(4) of that Act provides:
“(1)If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person, may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.
(2)On an application under this section, the Court may set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding.
(3)Subject to sub-section (4), an application under this section does not operate as a stay of the order unless the Court so orders.
(4)An application under this section with respect to an order for the payment of money operates as a stay of so much of the order as relates to the payment of money.”

The application for re-hearing brought by the fourth party, Flack, was made in accordance with Form 30A and complied with the provisions of Rules 30.01(2) and 30.02(1)(a) of the Magistrates’ Court Civil Procedure Rules.

On 18 December 2000 the application of the fourth party, Flack, was heard before the Magistrates’ Court, constituted by Magistrate Fleming. On that day orders were made by the magistrate. In a “Notice of Orders Made” in the first proceeding and produced on this appeal it states as follows:

“You are advised that on 18/12/2000 the following entries were made in the register:
Plaintiff : Booran Motors Sales Pty Ltd
Trading As : Booran Holden
Defendant/s : Craig Martin Pty Ltd
Trading As : Craig Martin Wholesale
P.B. & E.L. Wright Pty Ltd (Third Party)
John Flack (Fourth Party)

Proceeding : Breach of Contract/Agreement (non paymen (sic)

Orders
John Flack –V- P.B. & E.L. Wright Pty Ltd
AP. For Rehearing
Application order : Granted
Order of 19/09/2000 set aside.
P.B. & E.L. Wright Pty Ltd –V- John Flack
Notice to Obtain Relief
Adjournment order :
Adjourned to a date to be fixed by the Co-Ordinator
at Dandenong Magistrates’ Court
Hearing type Application
Adjournment reason : Application for REH
John Flack –V- P.B. & E.L. Wright Pty Ltd
AP. For Rehearing
OTH order:
1.Order that the third party provide a request for further of the fourth parties defence on or before 22/1/2001.
2.Fourth party to make file and serve further and better particulars on or before 5/2/2001.
3.Order the plaintiff, defendant and third party’s costs of today’s costs thrown away be reserved.”

On 17 January 2001, Wright who had paid the aforesaid moneys to Martin and at its request and direction to Booran instituted the second proceedings against Martin by a “complaint” filed in the Magistrate Court at Melbourne claiming payment of $37,658. By the particulars of claim forming part of the complaint which was dated 15 January 2001 but filed on 17 January 2001, Wright identified the nature of its claim against Martin as “money had and received”. By the particulars of claim on the complaint Wright, by way of allegation, recited the orders made by the Magistrates’ Court on 19 September 2001 in the first proceeding wherein the defendant, Martin, was ordered to pay Booran the sums referred to and alleged that by further orders of the Court that Wright was ordered to indemnify Martin against its liability to Booran in the sum of $33,478 and to pay Martin $4,180. Wright alleged that its claim was for moneys received by Martin for the use of Wright including the sum of $33,478 paid by Wright for Martin (that is, to Booran) and at the request of the solicitors for Martin. The plaintiff, Wright, in that second proceeding, alleged that on 18 December 2000 Magistrate Fleming stayed the orders of the Court made on 19 September 2000, “according to operation of s. 110 of the Magistrates’ Court Act”. The plaintiff, Wright, further alleged that despite requests made of Martin it had negligently and unlawfully failed or refused to return its money. Wright claimed against Martin payment of $37,658 “being moneys wrongfully retained by the defendant”.

The defendant, Martin, in the second proceeding, filed a Notice of Defence on 20 February 2001 which was amended on 9 March 2001. By its amended defence, the defendant, Martin, denied the allegations of the payments as alleged. It denied the allegation that on 18 December 2000 it had been ordered that the orders made by the Magistrates’ Court on 19 September 2001 had been stayed, it denied that it had negligently or unlawfully refused to return moneys paid by Wright or that it wrongfully retained those moneys. The defendant further alleged that any moneys received or paid by it as a result of any order in the first proceedings were received by or paid to it pursuant to the order made on 19 September 2000 and that no further order or orders had been made by the Magistrate who had made the order on 19 September 2000 or any other court of competent jurisdiction requiring the defendant, Martin, to do or to act in any manner other than it had done pursuant to the order made on 19 September 2000.

On 22 February 2001, in the second proceeding, the plaintiff, Wright, issued an application for an order for summary judgment against Martin pursuant to Rule 10.08 of the Magistrates’ Court Civil Procedure Rules. That Rule provides that a plaintiff may apply to the Court for such an order on the ground that the defendant has no defence to the whole or part of the claim or no defence except as to the amount of the claim.

On 13 March 2001, in the second proceedings, orders were made by Magistrate Smith which affected the orders made by Magistrate Hallenstein an 19 September 2000 in the first proceeding. Further orders were made on 9 April 2001 in the second proceeding by Magistrate Smith. These two orders were the subject of proceedings brought in this Court and were the subject of an order made by Nathan J on 4 July 2001 to the effect that they were each set aside. I do not need, on this appeal, to rehearse the details of that proceeding as the effect of the order was that the application of the plaintiff, Wright, for summary judgment, was ordered to be re-heard.

On 20 April 2001 in the second proceedings and in response to the application of the plaintiff, Wright, for summary judgment, the defendant, Martin, issued an application for an order to strike out the complaint of the plaintiff alleging that it was an abuse of the process of the Court.

On 23 May 2000 the first proceedings were listed before the Magistrates’ Court at Melbourne as constituted by Magistrate Smith. From the material before the Court on this appeal, it appears that on that day counsel for the plaintiff in that proceeding, Booran, sought an adjournment of the re-hearing of the first proceeding, the latter being on the basis that the order made by Magistrate Fleming on 18 December 2000 set aside all the orders made by Magistrate Hallenstein on 19 September 2000 in the first proceeding. I refer to this matter only as the transcript of what was said in the Court that day was before Magistrate Fleming on the application on which the order was made, the subject of this appeal. To this matter I shall return.

As a matter of completeness, I note that on 14 August 2001 Wright issued an application in the Magistrates’ Court against Booran, in the first proceeding, seeking delivery up and return of the moneys paid by Wright to it. I have previously referred to the order made in respect of application. As I have referred to it is not the subject of this appeal.

On 16 August 2001 the application of Wright against Martin in the second proceeding for summary judgment, the application of Martin against Wright to strike out Wright’s proceeding and the further application of Wright against Booran in the first proceeding came on for hearing before the Magistrates’ Court at Melbourne as constituted by Magistrate Fleming.

The hearing of the applications took place on 16 and 17 August 2001. On 20 August 2001 Magistrate Fleming delivered her judgment and made the following orders in the second proceedings as appears from a certified extract of such orders:

“Application for summary judgment refused. Plaintiff to pay defendants costs fixed in the amount of $3,653 together with reserved costs of 23 April 2001 fixed in amount of $600.
Application to strike out proceedings granted.
Proceeding P00147371 is struck out.
Plaintiff to pay defendant’s costs of the hearing and application fixed per order.”

In addition to those orders there appears on the certified extract of orders the following:
“Costs order:
P.B. & E.L. Wright to pay Craig Martin Pty Ltd costs $3,653.”

It is not clear whether the last order is a repetition of part of the orders previously referred to in the extract or whether it is a reference to the costs order last referred to. It is not necessary to be concerned with that matter on this appeal.

Pursuant to s. 109(1) of the Magistrates’ Court Act 1989 it is provided that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court on a question of law from a final order of the Magistrates’ Court in that proceeding. By sub-s. (3) of that section it is provided that an appeal under sub-s. (1) must be brought in accordance with the Rules of this Court. It is provided by Rule 58.09(1)(a) and (c) of the Rules of this Court that subject to paragraph 3 of that Rule, which is of no concern in this case, if the appellant shows to a Master of the Court a prima-facie case for relief, the Master should by order set out each question of law that the appellant shows to be raised on the appeal and refer the appeal for hearing and determination by a judge. By the order of the Master on this appeal made on 11 October 2001 the Master identified the final order of the Magistrates’ Court the subject of this appeal as follows:

“The final order of the Magistrates’ Court of Victoria which is the subject of this appeal is the order made on 20 August 2001 by the Magistrates’ Court at Melbourne constituted by Ms Fleming, Magistrate, in which she found that she had not set aside the orders of Master (sic) Hallenstein on 18 December 2001 and consequently:
Having dismissed the plaintiff’s claim for summary judgment for restitution of payments made pursuant to the orders of Master (sic) Hallenstein allowed the cross-claim by the respondent to strike out the plaintiff’s claim for restitution and struck out those proceedings and ordered that the plaintiff pay the defendant’s legal costs.”

The order made by the Magistrates’ Court on 20 August 2001, in the second proceeding, dismissing Wright’s claim against the defendant for summary judgment is not a final order. It is interlocutory in nature and cannot give rise to or be the subject of an appeal pursuant to s. 109 of the Magistrates’ Court Act. In Kinex Exploration v Tasco[1] Batt J said:

“The expression ‘final order’ is not defined in the Act, but it is clear both from the context and the authority of decisions of Fullagar J, Gobbo J and Beach J to which I shall refer later, that it is used as an antonym of the expression ‘interlocutory order’.”

[1][1995] 2 VR 318 at 320.

His Honour in that case after referring to the decision of Licul v Corney[2] and Carr v Finance Corporation of Australia (No.1)[3], said in his judgment at p. 321:

“The rationale of those decisions is that the test applicable in Australia for determining whether a judgment is final or not is ‘whether the judgment or order appealed from, as made, finally determines the rights of the parties’.”

[2](1976) 180 CLR 213.

[3](1981) 147 CLR 246.

The order refusing Wright’s application for a summary judgment did not finally determine the rights of the parties. However, the order made by the Magistrates’ Court on 20 August 2001 striking out Proceeding No. P00147371, the second proceeding, did finally determine the rights of the parties to that proceeding. It is against that order that Wright appeals to this Court in this appeal.

The questions of law stated by the Master as being those shown by the appellant to be raised on the appeal and as set out in the order of the Master made on this appeal on 11 October 2001 are:

“(a)Was the Magistrate wrong in law in holding that she could not have set aside all of the orders in a proceeding involving multiple parties on application by one only of those parties pursuant to or because of s. 110 of the Magistrates’ Court Act 1989?
(b)Having regard to the whole of the evidence could a reasonable magistrate properly instructed have held that there had not been an order for the rehearing of the whole of the proceedings of 19 September 2000?”

The latter question raises, as a question of law, before the Court on this appeal the evidence before the Magistrates’ Court on 16 and 17 August 2001, and a finding of the Magistrate on that evidence.

In Transport Accident Commission v Hoffman[4] the Full Court had before it an appeal brought pursuant to s. 52(1) of the Administration Appeals Tribunal Act 1984 which provided:

“A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from a decision of the Tribunal in that proceeding.”

It is to be seen that that section is almost in identical terms to s. 109(1) of the Magistrates’ Court Act. In Transport Accident v Hoffman it was held by Young CJ and McGarvie J at p. 199, that that section, under the Administrative Appeals Tribunal Act 1984, granted a right of appeal to the Court on a question of law involved in the decision of the Tribunal but it would exclude an appeal upon a question whether a particular decision was against the evidence or the weight of the evidence. Their Honours further held that that section would allow an appeal upon the question whether there was any evidence upon which the Tribunal could have reached the decision that it had reached. In Keep v Pozzebon[5], I held that the analysis of Young CJ and McGarvie J of s. 52(1) of the Administrative Appeals Tribunal Act was directly applicable to s. 109(1) of the Magistrates’ Court Act.

[4][1989] VR 197.

[5]No. 6091/94, 1 September 1994, unreported.

Although the second question, identified by the Master as a question of law, shown by the appellant to be raised on this appeal, is akin to an appeal from a jury verdict, in Young v Paddle Bros Pty Ltd[6] Herring CJ said:

“If on any reasonable view of the evidence [the] decision can be supported then the party who complains of that decision cannot have it set aside and the contrary decision that he desires substituted for it. It is a question of what he is entitled to as a matter of law and he is only entitled to a contrary decision where that decision is the only possible decision that the evidence on any reasonable view can support.

In paragraph 58.02.25, vol. 1, Williams Civil Procedure Victoria, the learned author addressing the question as to what constitutes a “question of law” under s. 109(2) of the Magistrates’ Court Act and, in particular, whether a finding of fact by a magistrate was one which, upon the evidence, a reasonable magistrate could make, said:
“The Court will treat the matter as an appeal in respect of the verdict of a jury and will not make up its own mind upon the evidence but rather confine itself to see whether there was evidence upon which the magistrate might as a reasonable person come to the conclusion which he or she did come.”

[6](1956) VLR 38 at 41.

Although an appeal pursuant to s. 109 of the Magistrates’ Court Act from a finding of fact by a magistrate is to be treated akin to an appeal from the verdict of a jury the phrase “properly instructed” in the second question identified by the Master as a question of law, shown by the appellant to be raised on this appeal, has no place in the identification of such a question of law.

The second question of law raised on this appeal takes me to the evidence which was before Magistrate Fleming on 16 and 17 August 2001. From the material filed on these proceedings it appears that the evidence before the Magistrate on those days comprised of affidavits filed and relied on on behalf of Wright and Martin. It is to those affidavits that I turn. One such affidavit was an affidavit sworn by Stephen Byrne, the solicitor for Wright, sworn on 22 February 2001. In that affidavit Byrne deposed, inter alia, that on or about 18 December 2000 Magistrate Fleming made orders, that the orders of Magistrate Hallenstein made on 19 September 2000 be stayed and that the matter be re-heard pursuant to s. 110 of the Magistrates’ Court Act 1989. He deposed that he was present that day and sought consequential orders that the defendant, Martin, return money paid by Wright under Magistrate Hallenstein’s orders, but that Magistrate Fleming said she had no application before her for the return of the money. Byrne deposed that each party before the Magistrate made submissions about the return of Wright’s money paid to Martin pursuant to Magistrate Hallenstein’s orders, but that Magistrate Fleming said that would have to be the subject of separate proceedings. He deposed that there were no extant orders under which Wright was liable to Martin and that it was his belief that Martin had no defence to the claim of Wright. A copy of the order made by Magistrate Hallenstein on 19 September 2000 was exhibited to the affidavit of Byrne. A copy of the order of Magistrate Fleming made on 18 December 2000 was not exhibited to that affidavit. In a further affidavit, sworn by Byrne on 28 March 2001, he deposed as to what he had been told and believed occurred in the second proceedings before Magistrate Smith on 13 March 2001 and the orders made that day. What occurred before Magistrate Smith that day on the return of the application brought on behalf of Wright against Martin for summary judgment and the orders made on that day are not relevant to this appeal. In a further affidavit sworn by Byrne on 23 April 2001 and relied on on behalf of Wright in the proceedings before the Magistrate on 16 and 17 August 2001, there is set out what is really argument and submissions made relevant to the order made by Magistrate Fleming on 18 December 2001 rather than deposing as to facts other than deposing that on 18 December 2000 Magistrate Fleming “specifically referred each party to seek costs thrown away on the abandoned trial from the Magistrates’ Court itself including the plaintiff and the defendant’s costs”.

Before Magistrate Fleming on 16 and 17 August 2001, there was an affidavit sworn by Belinda Raffa on 24 April 2001, a legal clerk of Wrights, Solicitors. She deposed that she had, on 24 April 2001, sought to recover from the civil registry of the Magistrates’ Court at Melbourne the tape recording of the hearing of the proceedings before Magistrate Fleming on 18 December 2000 and that she had been advised that the tape had been erased in accordance with the practice of the Court to erase tape recordings after a period of three months from the trial. There was also tendered before Magistrate Fleming on 16 and 17 August 2001 affidavit material exhibiting the transcript of proceedings before Magistrate Smith on the second proceedings on 13 March and 9 April 2001. That material, including the transcript of proceedings before the Magistrates’ Court on 13 March and 9 April 2001, was not relevant to the proceeding before Magistrate Fleming on 16 and 17 August 2001 and I put it to one side. Again, affidavit material was put before Magistrate Fleming relating to the proceedings brought in this Court relevant to the orders made on 13 March and 9 April 2001. That material was not relevant to the issues before Magistrate Fleming on 16 and 17 August 2001 and I put it to one side also.

There was also before Magistrate Fleming on 16 and 17 August 2001, a transcript of what was said in the proceeding before Magistrate Smith on 23 May 2001 to which I have previously referred. In that part of the transcript relevant to the proceedings before the Magistrates’ Court it is recorded that in answer to questions directed to Mr Carey of counsel, for the plaintiff in the first proceeding, both by Magistrate Smith and counsel for Wright, Mr Carey said that he had appeared before Magistrate Fleming on 18 December 2000 and that Magistrate Fleming had set aside all of the orders made by Magistrate Hallenstein on 19 September 2000.

An affidavit of Hugh Burchill of counsel sworn on 8 August 2001 was filed in the proceeding before Magistrate Fleming on 16 and 17 August 2001 and relied on on behalf of Wright in the proceedings before the Magistrates’ Court that day. In that affidavit Burchill deposed that on 18 December 2000 he appeared before Magistrate Fleming on behalf of the fourth party, Flack, on the return of the application by Flack. He deposed or asserted that the application of Flack sought, inter alia, “that all of the orders of Magistrate Hallenstein made on 19 September 2000 in matter number N00837241 [the first proceeding] be set aside and that the complaint, third party notice, and fourth party notice be re-heard as soon as possible”. It is to be noted that in part that is at variance from the application itself. To this affidavit Burchill exhibited the application of the fourth party, Flack, to which I have referred and set out. Burchill deposed that before Magistrate Fleming on 18 December 2000 Booran, Martin and Wright were represented. He deposed that in the course of the hearing of the application before Magistrate Fleming he submitted that she had to set aside all of the orders made by Magistrate Hallenstein because the liability of all parties in the proceeding was contingent upon “the plaintiff proving its case against the defendant”. That, I understand to be reference to the plaintiff in the first proceeding, Booran proving its case against Martin with respect to the title to and property in the Holden motorcar.

In his affidavit Burchill further deposed that after hearing submissions from all legal practitioners appearing before Magistrate Fleming she “then proceeded to make orders as sought in the Fourth Party’s Application, that is, setting aside the orders made by Magistrate Hallenstein made in favour of the Third Party against my client Flack, then setting aside the orders of Magistrate Hallenstein in favour of the defendant against the third party, then setting aside orders made in favour of the plaintiff against the defendant”. He deposed further, “Her Worship then proceeded to order a re-hearing of the entire proceeding No. N00837241 without making any order as to costs.” Burchill deposed further that he remembered that the solicitor appearing for the third party, Wright, sought an order that the moneys paid by the third party to and at the direction of the defendant pursuant to the orders of Magistrate Hallenstein be returned to the third party, and that he could recall Magistrate Fleming “making comment” that she was not then sitting to hear an application for the return to the third party of moneys paid to it, and that if the moneys were not returned on request then separate proceedings would have to be commenced.

In an affidavit sworn by Geoffrey Dillon, the solicitor for Martin, on 19 November 2001 and filed on this appeal, and being in reply to the affidavit sworn by Stephen Byrne, the solicitor for the appellant, he deposed that on 16 and 17 August 2001, on the hearing before Magistrate Fleming, there were filed three affidavits sworn by him, namely 10 March, 20 April and 23 April 2001. From reading the transcript of the proceedings before the Magistrate on 16 and 17 August 2001, it is apparent that a number of affidavits sworn by Dillon were before her on those days. Following the practice of the Court on an appeal such as this, I propose to act on the affidavit sworn by Dillon on 19 November 2001 and filed in this appeal as to that matter.

In the affidavit sworn by Dillon on 10 March 2001, he identified and exhibited a letter received by him from the Deputy Registrar of the Magistrates' Court of Victoria, dated 22 December 2000, enclosing for his information a copy of the notice of the hearing of the proceedings between the third party (Wright) and the fourth party (Flack) to take place on 8 March 2001. In that letter she states her understanding of the order made by Magistrate Fleming on 18 December 2000. That is made by reference to the order made by Magistrate Fleming on that date.

In the affidavit sworn by Geoffrey Dillon on 20 April 2001, he deposed that in reliance on the order of Magistrate Hallenstein, made on 19 September 2000 in the first proceeding, Wright on 23 October 2000 paid to the defendant, Martin, in such proceeding the sum of $4,180 in respect of the costs ordered to be paid by Wright to Martin, and on 24 October 2000 Wright paid to the solicitors for Booran the sum of $3,478 as part payment of the total sum to be paid to the plaintiff, Booran, and, on that day, Wright sent to him, as solicitor for Martin, the balance of $30,000 by cheque payable to the solicitors for Booran, which he immediately forwarded to those solicitors. Those payments, he deposed, were paid pursuant to the order of Magistrate Hallenstein in the first proceedings and not because of any mistake. Further in his affidavit, Dillon made statements which are in the form of assertions and submissions in support of the conclusion that the order of Magistrate Fleming made on 18 December 2000 only set aside the order made by Magistrate Hallenstein on 19 September 2000 as it related to the proceeding between the third party, Wright, and the fourth party, Flack, and that the re-hearing as ordered related only to those proceedings. Those latter matters could only be regarded by Magistrate Fleming on 16 and 17 August 2001 as submissions, and not as evidence of fact. To his affidavit sworn on 20 April 2001, there is also exhibited a “Notice of Order Made” by Magistrate Fleming in the first proceeding on 18 December 2000. Accordingly, on this affidavit being before Magistrate Fleming on 16 and 17 August 2001, there was before her, as a matter of evidence, the order made by her on 18 December 2000 in the first proceedings.

In his affidavit sworn on 23 April 2001, Dillon exhibited an affidavit sworn by Stephen Byrne on 19 April 2001, in the proceedings brought by Martin in this Court against Wright which resulted in the orders of Magistrate Smith, made in the second proceedings, which affected orders of Magistrate Hallenstein in the first proceeding, to which I have referred. In that affidavit, after referring to the orders made in the first proceeding by Magistrate Hallenstein on 19 September 2000, Byrne deposed that “Wright complied with those orders at Martin's request paying Martin's costs and by way of indemnifying Martin and at Martin's request paying Booran's damages and costs.” Further in that affidavit as sworn by Byrne, he deposed that on 18 December 2000, on the application being heard before Magistrate Fleming in the first proceeding, Magistrate Fleming made orders setting aside those of Magistrate Hallenstein, reserving costs and referring the matter for re-hearing. In that affidavit, Byrne deposed that counsel for Booran and Martin, when appearing before Magistrate Fleming on that day, submitted that the only orders to be set aside ought to be those between Wright and Flack, whereas he, on behalf of Wright, and Burchill on behalf of Flack, submitted that by only setting aside those orders it would require Wright, as the third party, to run Booran's case, which it was not in a position to do, and that Burchill said to the Magistrate that, given that the third party notice against Flack was based on Wright's defence of Booran and Martin's claim against him, Wright was not in a position to succeed against Flack unless the Booran claim was heard at the same time. Byrne deposed in his affidavit that this latter submission was acceded to by Magistrate Fleming.

Byrne further deposed in that affidavit that on that day on the hearing before Magistrate Fleming, he made an application for the return of Wright’s money from Martin, but the Magistrate, in substance, said that he would have to commence new proceedings against Martin if the money was not repaid on request. Byrne further deposed that Magistrate Fleming on that occasion “noted that all orders had been set aside and that s. 110(4) of the Magistrates’ Court Act operated as a stay in respect of the payment of any moneys under orders set aside”. To the extent that this affidavit was before Magistrate Fleming on 16 and 17 August 2001, there was that account before her of the proceedings which took place before her Worship on 18 December 2000. I do not otherwise refer to that affidavit which in further part deals with the proceedings before Magistrate Smith in the second proceedings.

On 16 and 17 August 2001 submissions were made to Magistrate Fleming with respect to the three applications before her that day, they being in the second proceedings the application made on behalf of Wright for summary judgment against Martin, the application of Martin to strike out the proceedings of Wright and in the first proceeding the application and proceedings brought by Wright against Booran. Although submissions were made to her Worship consecutively with respect to each of those applications it is apparent from the transcript of the proceedings that her Worship sought to limit the repetition of submissions made with respect to one proceeding which was common to another proceeding. On behalf of Wright, and in the course of submissions made with respect to the application for summary judgment, it was submitted to her Worship that on 18 December 2001, in the first proceeding, she had set aside each of the orders made by Magistrate Hallenstein on 19 September 2000. It was submitted that the evidence before the Court was overwhelming that that had occurred. It was accepted by counsel for Wright that in order for Wright to succeed on its application for summary judgment it was necessary for it to establish that on 18 December 2000 her Worship had set aside each of the orders made by Magistrate Hallenstein on 19 September 2000. It was on that basis that it was submitted, that as that had been done, Wright was entitled to restitution of the moneys paid in satisfaction of the judgment and orders made by Magistrate Hallenstein on 19 September 2000. During the course of submissions relevant to the application for summary judgment, there was tendered that which was said to be a certified extract of the orders made by Magistrate Fleming on 18 December 2000. There is no evidence before me on this appeal that that which was tendered and received in evidence at that point in any way differed from the Notice of Order Made relevant to the orders made by Magistrate Fleming on 18 December 2000 as exhibited to the affidavit of Stephen Byrne sworn 18 September 2001 in support of this appeal in which he identifies the document as “a copy of the orders of the Melbourne Magistrates’ Court made 18 December 2000” and which is in nature and form the same as the Notice of Order Made exhibited to the affidavit of Geoffrey Dillon sworn 20 April 2001 and which was before Magistrate Fleming on 16 and 17 August 2001. In those circumstances, on this appeal, I treat that referred to and being tendered before her Worship as the certified extract of the order made by her on 18 December 2000 as that also evidenced by the Notice of Order Made.

On behalf of Martin, it was submitted that Magistrate Fleming did not set aside all the orders made by Magistrate Hallenstein on 19 September 2000 but that she only set aside the order made by Magistrate Hallenstein on 19 September 2000, in the first proceeding, as between the third party, Wright, and the fourth party, Flack. It was further submitted that when regard was had to s. 110 of the Magistrates’ Court Act, that on the application that was before her on 18 December 2000, in the first proceeding, she did not have jurisdiction or power to set aside the other orders made by Magistrate Hallenstein on 19 September 2000 in the first proceeding. It was submitted that when reference was had to the form of the order made by her on 18 December 2000 the only proceeding that was adjourned for re-hearing, on a date to be fixed by the Co-Ordinator, was the proceeding between the third party, Wright, and the fourth party, Flack. Further, it was submitted that pursuant to s. 110(4) of the Magistrates’ Court Act, the application of the fourth party, Flack, which was before the Court on 18 December 2000, in the first proceeding, operated as a stay of the order made in the proceeding between Wright and Flack but not otherwise with respect to other orders made by Magistrate Hallenstein on 19 September 2000. It was submitted that what orders were made by Magistrate Fleming on 18 December 2000 had to be determined by reference only to the Court record.

With respect to the strike-out application before Magistrate Fleming on 16 and 17 August 2001, it was submitted, inter alia, that as the orders as between Booran and Martin and Martin and Wright made by Magistrate Hallenstein on 19 September 2000 had not been set aside by Magistrate Fleming on 18 December 2000, the moneys paid by Wright were paid pursuant to extant orders and that, accordingly, the claim of Wright in the second proceedings against Martin did not disclose a cause of action for money had and received. It was further submitted that if all the orders made by Magistrate Hallenstein on 19 September 2000 had been set aside by Magistrate Fleming on 18 December 2001 any proceeding by Wright to recover moneys paid pursuant to orders made by Magistrate Hallenstein should have been taken in the first proceedings and a separate proceeding should not have been instituted.

Magistrate Fleming on 20 August 2001 delivered her judgment and made the orders to which I have previously referred. In her judgment Magistrate Fleming identified the orders made by the Court on 18 December 2000 as those which appeared by the exhibit to the affidavit of Dillon sworn on 20 April 2001. That document is the “Notice of Order Made” to which I have previously referred in this judgment.

In her judgment Magistrate Fleming said in part, “My order of 18 December 2000 granted the application of Flack and set aside the order of Mr Hallenstein on 19 September 2000 in accordance with law. On 18 December 2000 this Court only had power to set aside the order of Mr Hallenstein insofar as it related to Flack because Flack was the only party who did not appear at the hearing before Mr Hallenstein. I refer to s. 110 of the Magistrates’ Court Act. The Court record correctly states what was ordered on 18 December by me.” Her Worship referred to evidence placed before her as to what had occurred on 18 December 2000 including the affidavit sworn by Burchill on 8 August 2001 and what had been said from the bar table by Mr Carey before Magistrate Smith on 23 May 2001. She said she had no recollection of what had occurred on 18 December 2000. Having referred to these matters she said, further, “Taking all these matters into account, the best evidence before the Court as to what occurred on 18 December 2000 is the Court record which is exhibited in the material. Accordingly the status of Mr Hallenstein’s orders of 19 September 2000 are as reflected in the Court record on that date.” In her judgment her Worship said that the summary judgment application had failed. As to the strike-out application she said that “Given the plaintiff’s cause of action for moneys had and received is based on the premise that my orders of 18 December 2000 set aside the judgment in respect of Wright and Martin, the application to strike out must succeed”. Her Worship further stated in her judgment that the pleadings in the second proceeding were wrong, for, in part, the pleadings did not reflect what in fact occurred as evidenced in the Court record. That clearly was a reference by her Worship that on 18 December 2000 by orders made by her that day she did not set aside the orders made by Magistrate Hallenstein on 19 September 2000 against Martin and against Wright, the latter being on the third party proceedings. She held that as those orders made by Magistrate Hallenstein had not been set aside by her on 18 December 2000 the claim of the plaintiff, Wright, against Martin, in the second proceeding, did not disclose a cause of action.

I turn to consider the first question of law raised on this appeal. In its terms it is expressed as a question, whether Magistrate Fleming was wrong in law in holding that she could not have set aside all the orders of Magistrate Hallenstein made on 19 September 2000, on the application of one only party to the proceedings before Magistrate Hallenstein because of s. 110 of the Magistrates’ Act. The question of law drawn in that form misconceives, in my view, what was held by Magistrate Fleming in her judgment delivered on 20 August 2001. In part of her judgment she said, “My order of 18 December 2000 granted the application of Flack and set aside the order of Mr Hallenstein on 19 September 2000 in accordance with law. On 18 December 2000 this Court only had power to set aside the order of Mr Hallenstein insofar as it related to Flack, because Flack was the only party who did not appear at the hearing before Mr Hallenstein. I refer to s. 110 of the Magistrates’ Court Act. The Court record correctly states what was ordered on 18 December by me.” Before so stating, Magistrate Fleming, in her judgment, had identified the orders of the Court made on 18 December 2000 as that appearing by the exhibit to an affidavit of Dillon. The order that was made that day, as recorded in the register of the Court, was a matter of evidence before her on the hearing of the proceedings on 16 and 17 August 2000. Magistrate Fleming, in her judgment, after stating that to which I have referred to, then referred to the evidence put before the Court on the issue as to what she had ordered on 18 December 2000, and whether on that day she had set aside all the orders made by Magistrate Hallenstein on 19 September 2000, or whether the orders made by her on 18 December 2000 only related to the order made against Flack in his absence on 19 September 2000. Magistrate Fleming, in her judgment, referred to the evidence of Burchill as contained in his affidavit. She also referred to that said by Mr Carey before Magistrate Smith on 23 May 2001. As to this latter matter, from the transcript of the proceedings before Magistrate Fleming on 16 and 17 August 2001 it appears that no objection was taken to the receipt of the evidence in the form produced to the Court. In such circumstances I do not consider whether that material was properly before the Court as a matter of evidence. In her judgment Magistrate Fleming considered this matter and took it into account. Having considered the evidence including that of Burchill and the evidence of the statement of Carey, she concluded that the best evidence before the Court on the hearing of the applications before her on 16 and 17 August 2001, as to what was ordered by her on 18 December 2000, was the Court record. She found as a matter of fact that what she had ordered on 18 December 2000 was that recorded in the register of the Court. She held as a matter of fact on the evidence before her that the orders made by her on 18 December 2000 were those as recorded in the register of the Court. In her judgment she did not reason that because of the provisions of s. 110 of the Magistrates' Court Act, which only gave her power on the application of Flack to set aside the final order made against him, by Magistrate Hallenstein on 19 September 2000, she only set aside the orders made by Magistrate Hallenstein that related to Flack. Magistrate Fleming, in her judgment on 20 August 2001, found as a fact that on 18 December 2000 she only set aside the orders made by Magistrate Hallenstein on 19 September 2000 insofar as they related to the applicant Flack. She held as a matter of law that s. 110 of the Magistrates’ Court Act only gave her power to set aside the orders of Magistrate Hallenstein made on 19 September 2000 insofar as they related to Flack. In her judgment she did not hold that because her power under s. 110 of the Magistrates’ Court Act was limited to being able to set aside only the orders of Magistrate Hallenstein insofar as they related to Flack, that as a fact that is all that she ordered on 18 December 2000.

Although that disposes of the first question of law raised on the appeal, having regard to the manner in which the question is phrased and put before the Court, I propose to deal with the arguments addressed to the Court on this appeal as to whether, in the circumstances of the application before Magistrate Fleming on 18 December 2000, she was correct in holding on 20 August 2001 that, on the application before her brought pursuant to s. 110 of the Magistrates’ Court Act, she only had power to set aside the orders of Magistrate Hallenstein made on 19 September 2000 insofar as they related to Flack. That is, on the fourth party proceeding between Wright and Flack.

On behalf of Wright, it was submitted that s. 110 of the Magistrates’ Court Act, on the application brought pursuant to sub-s. (1), if an order was made pursuant to sub‑s. (2), the Court would have to, that is, be obliged to, set aside the orders made in the proceeding between the plaintiff, Booran, and the defendant, Martin, and in the third party proceeding between the defendant, Martin, and the third party, Wright. It was submitted, in substance, that the orders made against Martin and Wright were founded on the fact that Flack did not have good title to and property in the Holden motorcar which he had traded in with Wright, and that if the Court was limited, as held by Magistrate Fleming, then, if in the fourth party proceeding brought by Wright against Flack, it was concluded that Flack did have good title and property in the Holden motorcar, Wright would be left in a position of having a judgment against him founded on a finding that Flack did not have good title or property in the Holden motorcar against which judgment he would not be able to be indemnified by Flack.

On behalf of Martin, it was submitted that the words of s. 110 were clear and not ambiguous, and that the provisions of s. 110 operate only in respect of an application brought by a person against whom a final order has been made in a civil proceeding where the applicant did not appear in that proceeding. It was submitted that pursuant to sub-ss. (1) and (2) the Court in such circumstance, as was the present case, on such application being made to the Magistrates’ Court, it only had power to set aside the order made against the person in the proceeding in which the final judgment was entered. It was submitted that, although each of the three proceedings in the case heard before Magistrate Hallenstein were heard together, the fourth party proceeding against Flack was a proceeding separate from the other proceedings. It was accepted that on the fourth party proceeding being heard separately from each of the proceedings brought by Booran against the defendant, Martin, and the third party proceedings brought by Martin against the third party, Wright, there may be inconsistent findings, but it was submitted that, notwithstanding that, such risk could not affect the unambiguous language of s. 110 of the Magistrates’ Court Act.

In AMP Fire & General Insurance Company Ltd v Dixon[7], proceedings had been brought on behalf of an infant plaintiff, who had been injured, against the defendants, alleging that they were negligent and responsible for injuries suffered by the infant. The defendants issued third party proceedings against third parties including the appellant insurer. Against the appellant, in the third party proceeding, it was alleged that it had issued a policy of insurance in favour of the defendants, whereby it agreed to indemnify them against any sum which they may become legally liable to pay in circumstances relevant to the claim which the infant plaintiff made against them. A Master of the Court ordered that there be a separate trial of the issues between the defendants and the third party insurer, and that that trial be held before the trial of the action. That is what occurred. On the trial of that third party proceeding, the trial Judge declared that the defendants were entitled to be indemnified by the insurer against any liability that they may incur to the infant plaintiff in the action. It was against that declaration that the insurer appealed. At p. 835 the Full Court (constituted by Young CJ and McInerney and King JJ) addressed the question whether third party proceedings should be determined before the trial of the action, stating that important questions of practice and procedure were involved. Their Honours said:
[7](1982) VR 833.

”It is as well to begin a consideration of this matter by quoting the well-known passage from the judgment of Scrutton, L.J. in Barclay's Bank v Tom [1923] 1 KB 221, at p. 224, which reads:
‘The object of the third party procedure is then in the first place to get the third party bound by the decision between the plaintiff and the defendant. In the next place it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And thirdly it is directed to saving extra expense which would be involved by two independent actions.’

… - - - - - - - - - - - - - - - - - - - - - - - - - - -
Another object of the third party procedure is the avoidance of the possibility of inconsistent findings on the same facts: per Blackburn, J in Venecke v Frost (1876), 1 Q.B.D. 419 at p. 422.”

In their judgment their Honours held that only in exceptional circumstances should the power to order separate trials of a plaintiff against a defendant and a defendant's claim against a third party be exercised. That said by the Court to which I have referred, is equally apposite to fourth party proceedings.

In the circumstances of what occurred before Magistrate Hallenstein, he proceeded to hear and determine each of the three proceedings in the case before him, together. However, the fourth party proceeding was a separate proceeding from the other two proceedings. It was in the circumstances of the trial that it occurred that the defendant to the fourth party proceeding, Flack, did not appear before Magistrate Hallenstein and it was on the fourth party proceeding that a final order was made against him. Section 110(1) of the Magistrates’ Court Act enabled Flack to apply to the Court for an order to set aside the final order made against him in that proceeding, that is, in the fourth party proceeding. Sub-section (2) empowered the Court to set aside that order, that is, the order made, against Flack, in the fourth party proceeding. In the exercise of the Court's discretion, pursuant to s. 110(2), it empowered Magistrate Fleming, in the circumstances of this case, to set aside the order made against Flack in the fourth party proceeding, subject to any terms and conditions as the Court thought fit. In my opinion, such a term or condition could not include the setting aside of the orders made in the proceeding of the plaintiff against the defendant or in the third party proceeding brought against Wright. There exists no rule of law which compels a third or fourth party proceeding to be heard at the same time as a proceeding further up the chain in a case before the Court. One basis of the principle enunciated by the Court in AMP Fire & General Insurance Company Ltd v Dixon, that is, that only in exceptional circumstances should a third party proceeding not be heard at the same time as the action in the case, is to avoid the risk of inconsistent decisions between that determined in the action and that determined in the third party proceeding. It is well known in practice that in some circumstances where a third party proceeding is not to be heard at the same time as the action, but after the hearing of the action, that an order is made which binds the third party to the decision in the action while permitting the third party to participate in the trial of the action to some extent. However, the fact that a court should seek to avoid the risk of inconsistent decisions being given in the proceeding between the plaintiff and the defendant, and in the proceeding between the defendant and the third party, which in part underlies the principle that only in exceptional circumstances should it be ordered that a third party proceeding not be heard at the same time as the trial of the action, does not permit the clear language of s. 110(1) and (2) of the Magistrates’ Court Act to be so interpreted such that, in the circumstances of this case, Magistrate Fleming on 18 December 2000, in the exercise the discretion vested in her pursuant to s. 110(2) of the Magistrates’ Court Act, on the application of Flack, was empowered to set aside not only the final order made against Flack but also those made against Martin and those against Wright in the third party proceeding. Section 110(2) empowered Magistrate Fleming on 18 December 2000, on the application of Flack, to set aside “the order”. That “order” has direct reference to the “final order” referred to and the subject of s. 110(1). It is the final order in a civil proceeding “against a person who did not appear in the proceeding”. That order, in the circumstances of this case, was the order made by Magistrate Hallenstein on 19 September 2000 against Flack on the fourth party proceeding. In my view, Magistrate Fleming was correct in holding in her judgment delivered on 20 August 2001, that in the first proceedings, on 18 December 2000, on the application brought by Flack, that she did not have power in the exercise of her discretion under s. 110(2) to set aside the orders of Magistrate Hallenstein in the proceeding of the plaintiff, Booran, against the defendant, Martin, and in the third party proceeding of Martin against the third party, Wright, and that she only had power to set aside the final order made against Flack in the fourth party proceeding.

I turn next to consider the second question of law raised on this appeal. At the outset it must be kept in mind, when considering this question, that the issue, the subject of this question, was an issue of fact to be determined by Magistrate Fleming in the second proceedings before her on 16 and 17 August 2001. It was for her Worship to determine in the second proceedings between Wright and Martin, on the summary judgment application, but to the point on this appeal, the “strike out” application, what order was made by her in the first proceedings on 18 December 2000. The issue of fact for Magistrate Fleming to determine in the second proceeding, the subject of this question, was whether by the order made by her on 18 December 2000 she set aside only the order made by Magistrate Hallenstein on 19 September 2000 in the fourth party proceeding against Flack and ordered a re‑hearing of that fourth party proceeding or whether she set aside all of the orders made by Magistrate Hallenstein on 19 September 2000 in the first proceedings, and being the order made against the defendant, Martin, in the action, the order made against Wright in the third party proceeding and the order made against Flack in the fourth party proceeding.

This question does not arise on an appeal from an order on an application in the first proceedings to correct the order made in that proceeding by Magistrate Fleming on 18 December 2000 because of some alleged “mistake” or “slip” or “accidental omission” in or with respect to the order made by Magistrate Fleming on that day. In De Zylda[8] the Full Court issued a supplementary judgment to correct an internal inconsistency in its orders made some four months previously. The Chief Justice on behalf of the Court at p. 208 said:
[8](1988) 38 A Crim R 207.

“Any court has an inherent jurisdiction to correct any judgment or order which owing to error does not give effect to what the court intended to do. It is a power which is essential to ensure that justice is done. It is not possible pursuant to the power to vary or amend an order which the court intended to make, but an error in an order can be corrected so as to do justice and to give effect to the court’s intention.”

In Kelly v Von Einen[9] O’Bryan J at p. 42, referring to that stated by the Chief Justice in De Zylda, said:
“Although there is no express statutory power in the magistrates’ court to correct an error in an order arising from a ‘mistake’ or ‘slip’ or ‘accidental omission’, I consider an inherent jurisdiction arises in the magistrates’ court to correct an error in the record of a later date.”

This matter need not be further pursued on this appeal, but the distinction between such an application being made in the first proceeding and the question of fact that was determined by Magistrate Fleming in the second proceeding on 20 August 2001 must be appreciated.

[9](1995) 84 A Crim R 37.

It was submitted on behalf of Wright that the Court record was and is ambiguous. In so submitting, I understand that the reference made to the Court record is a reference to that recorded in the register of the Court, being the orders made by Magistrate Fleming on 18 December 2000, as set out and being the subject of the “Notice of Order Made” before Magistrate Fleming by way of evidence in the proceedings before her on 16 and 17 August 2000. It was submitted on behalf of Wright that in those circumstances, and having regard to the evidence before the Court, including that deposed by Burchill in his affidavit and that said by Carey from the bar table when before Magistrate Smith on 23 May 2001, that, by her judgment on 20 August 2001, Magistrate Fleming was in error in holding that on 18 December 2000, in the first proceedings, she only set aside the order of Magistrate Hallenstein made on 19 September 2000 against Flack in the fourth party proceeding.

In the judgment of Magistrate Fleming, given by her on 20 August 2001, she stated that she had no independent recollection of the matters relevant to this case that occurred before her on 18 December 2000. She determined this issue on the evidence before her on 16 and 17 August 2000. She had regard to the evidence as to this matter as contained in the evidence before her on affidavit including the affidavit of Burchill and also to a transcript of what was said by Mr Carey when he was before Magistrate Smith on 23 May 2001.

On behalf of the respondent, Martin, it was submitted that the orders of Magistrate Fleming made on 18 December 2000 were not ambiguous, that it was to be seen from those orders that the only order made by Magistrate Hallenstein on 19 September 2000 that Magistrate Fleming set aside on 20 December 2000, was the order made by Magistrate Hallenstein against Flack on the fourth party proceeding, and that the only proceeding that was ordered to be re-heard was the fourth party proceeding between Wright and Flack. It was submitted that, having regard to the evidence before Magistrate Fleming on 16 and 17 August 2001, there was no error in law in her holding that on 18 December 2000, in the first proceedings, the only order set aside by her of the orders made by Magistrate Hallenstein on 19 September 2000 was the order made against Flack in the fourth party proceeding.

Rule 25.04(2) of the Magistrates’ Court Civil Procedure Rules 1999 (which commenced on 1 June 1999) provides:

“(2)Except where a special form of order is prescribed by the rules a certified extract from the court record of any order shall be sufficient for any purpose for which an order is required.”

There appears, by the rules, to be no form of order prescribed relevant to or of the nature of the orders made by Magistrate Hallenstein on 19 September 2000 or by Magistrate Fleming on 18 December 2000. As to the order made on 20 August 2000 by Magistrate Fleming a certified extract of that order was before the Court on this appeal. The “Notice of Order” setting out the entries made, in the form of orders in the registry of the Magistrates’ Court on 18 December 2000 by Magistrate Fleming, with respect to the application then before her, was exhibited to the affidavit of Dillon sworn by him on 20 April 2001. In her judgment delivered on 20 August 2001, Magistrate Fleming said that the best evidence as to what occurred on 18 December 2000 was “the Court record which is exhibited to the material”. She had previously identified the orders of the Court made on 18 December 2000 as those appearing in the exhibit to the affidavit of Dillon and constituted by the “Notice of Order Made”. The reference by Magistrate Fleming to the “Court record which is exhibited to the material” is clearly a reference to that document. It is to be observed also that in the affidavit of Stephen Byrne sworn on 18 September 2001 and filed in this Court, he exhibited a “Notice of Order Made” in the same form and content as that exhibited to the affidavit as being “a copy of the orders of the Magistrates’ Court made on 18 December 2000”. It is to the Notice of Order Made wherein there is set out the entries made in the registry of the Court on 18 December 2000 that I have regard in order to address whether there exists ambiguity in the orders made by Magistrate Fleming on 20 December 2000 and recorded in the registry of the Magistrates’ Court.

The “Notice of Order Made” advises that on “18/12/2000 the following entries were made in the register”. The proceedings are there identified as the proceedings in which Booran is plaintiff and Martin is defendant, Wright is third party and Flack is the fourth party. Under the heading “Orders” there appears “john flack –v- P.B. & E.L. wright pty ltd”, followed by “AP. For rehearing Application order : granted Order of 19/09/2000 set aside”. In that part of the orders recorded, I am of the view that it clearly records that there was an application by Flack against Wright for a re-hearing, which application was granted and the order of 19 September 2000 set aside. Flack was only a party to the fourth proceeding. It was in that proceeding that he made his application, which was granted, it being ordered that the “Order of 19/09/2000 [be] set aside”. Although it may be said that on 19 September 2000 on the fourth party proceeding there were a number of orders made by Magistrate Hallenstein, I read the entry as recorded in the register to be that which was set aside by order of Magistrate Fleming on 18 December 2000 was the orders made by Magistrate Hallenstein only in the fourth party proceeding against Flack.

There then appears in the “Notice of Order Made” under the heading “P.B. & E.L. Wright Pty Ltd –v- John Flack Notice To Obtain Relief”. I read those entries in the register to be reference only to the fourth party proceeding brought by Wright against Flack by way of the “Notice to Obtain Relief” pursuant to Rule 8.07 and which was the form of notice by which the fourth party proceeding was commenced in the first proceedings. It is under that heading that the entry in the register states, “Adjournment order : Adjourned to a date to be fixed by the Co-Ordinator at Dandenong Magistrates’ Court”. In my view, that adjournment order clearly relates to an order being made in the fourth party proceeding and that proceeding being adjourned to be a date to be fixed by the Co-Ordinator. There is no basis on which it can be contended for good reason that that which was adjourned for re-hearing was all of the proceedings constituting and forming the first proceedings. The order last appearing in the register, “order the plaintiff, defendant and third party’s costs of today’s costs thrown away be reserved” was the subject of evidence before Magistrate Fleming on 16 and 17 August 2001 in the affidavit of Byrne sworn on 23 April 2001. An order in that form is consistent, in my view, with the Magistrate’s reserving such costs pending the outcome of the re-hearing of the fourth party proceeding, taking account of the fact that the application of the fourth party to set aside the order made against him was directed to each of the other three other parties in the first proceedings. Having read the Notice of Order Made which records the entries made in the register of the Magistrates’ Court on 18 December 2000, I am of the view that there is no ambiguity in the orders made. That which was entered and recorded in the register was the order made by Magistrate Fleming on that day on the application of Flack, wherein she set aside only the order made in the fourth party proceeding against Flack, and only ordered that that proceeding be re‑heard on a date to be fixed by the Co-Ordinator. In my view, the reservation of costs to which I have referred is consistent with such being the orders made by Magistrate Fleming that day. In her judgment, Magistrate Fleming by stating that the Court record correctly stated that which was ordered on 18 December 2000, clearly has determined that the order made by her on 18 December 2000, in the first proceedings, was an order that only the order made by Magistrate Hallenstein against Flack on the fourth party proceeding was set aside. That this is the case is to be further seen in her judgment, wherein she found that the second proceeding brought by Wright against Martin disclosed no cause of action and ordered that it be stuck-out.

Although there was evidence before the Court on 16 and 17 August 2001 which challenged the entries made in the register of the Court and being the orders made by Magistrate Fleming on 18 December 2000, there was clearly evidence before Magistrate Fleming being the unambiguous entry made in the registry of the Court as to the orders made that day which entitled her as a reasonable person to come to the conclusion that on 18 December 2000 the only order of Magistrate Hallenstein made on 19 September 2000 that she ordered to be set aside was the order made by him against Flack on the fourth party proceeding. This is not a case where there was uncontradicted evidence before the Magistrate on 16 and 17 August 2001 which was reasonable and inherently probable as to what orders were made by her in the first proceedings on 18 December 2000[10]. The evidence placed before the Court on behalf of Wright, on the applications before Magistrate Fleming on 16 and 17 August 2000, as to what were the orders made by her on 18 December 2000, was contradicted by the entries made in the register of the Court, as evidenced by the “Notice of Order Made” before the Court. The finding and conclusion of fact as found by Magistrate Fleming was open to be made on the evidence by the Magistrate as a reasonable person.
[10]cf. Read v Nerey Nominees Pty Ltd [1979] VR 47.

Having regard to the evidence before Magistrate Fleming on 16 and 17 August 2001, in the second proceeding, there was no error in law in her determining as a fact that the orders made by her on 18 December 2000, in the first proceeding, only set aside the orders of Magistrate Hallenstein made on 19 September 2000 against Flack on the fourth proceeding, and that the orders made by her did not set aside all the orders made by Magistrate Hallenstein in the first proceeding on 19 September 2000.

Having reached the conclusion that she did as to the order made by her in the first proceeding on 18 December 2000 and having regard to the evidence before her, that the payment of moneys by Wright were paid by it in satisfaction of and in compliance of orders made by Magistrate Hallenstein on 19 September 2000 in the proceeding between Booran and Martin and the third party proceeding between Martin and it, Magistrate Fleming made no error in law in concluding that the second proceeding brought by Wright against Martin did not disclose a cause of action and should be struck out.

For the reasons stated on this appeal, there has been disclosed no error on a question of law from the final order made by Magistrate Fleming on 20 August 2001, wherein she ordered that the second proceeding in which Wright was plaintiff and Martin defendant, be struck out. The appeal of Wright must be dismissed.

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[2002] VSC 304

7 August 2002