Sarah Miller v JB HI-FI Ltd - [2018] NTLC 10

CITATION:Sarah Miller v JB HI-FI Ltd [2018] NTLC 010
PARTIES:SARAH MILLER
V

JB HI-FI LTD

TITLE OF COURT:  Local Court
JURISDICTION:  Interlocutory
FILE NO(s):21611726
DELIVERED ON:  9 March 2018
DELIVERED AT:  Darwin
HEARING DATE(s):  28 February 2018
JUDGMENT OF:  J Johnson JR
CATCHWORDS:

JURISDICTION TO SET ASIDE EX PARTE ORDERS – general principle that when a judicial order has been obtained ex parte the party affected by it may apply for its discharge.
TIME FOR SERVICE – Rule 7.06 of the Local Court (Civil Jurisdiction) Rules
Where statement of claim not served in time – where no order for extension of time can be made after statement of claim ceases to be valid.
EXTENDING TIME – Rule 3.03(2) of the Local Court (Civil Jurisdiction) Rules
Where Court’s usual discretion to extend time is conditioned by reference to Rule 7.06.
EXTENDING TIME – Part III Division 2 of the Limitation Act
Whether ss 44(1) and 44(2) of the Act can re-enliven the Court’s jurisdiction to entertain an application to extend time as if it were not out of time.
REPRESENTATION:
Counsel:
Plaintiff:Mr Crawley SC
Defendant:Mr Sanders
Solicitors:
Plaintiff:Piper Ellis Lawyers
Defendant:HWL Ebsworth Lawyers
Judgment category classification:    C
Judgment ID number:  [2018] NTLC 010
Number of paragraphs:  29

IN THE LOCAL COURT

AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 21611726

BETWEEN:

SARAH MILLER

Plaintiff

AND:

JB HI-FI LIMITED

Defendant

DECISION OF J JOHNSON JR
(Delivered 9 March 2018)

On 10 January 2018, following submissions in open Court from Senior Counsel for the plaintiff, I made the following ex parte orders in this proceeding:
1. Pursuant to section 44(1) of the Limitation Act, the time in which to seek an extension of the validity of the Statement of Claim in this proceeding is extended.
2. The validity of the Statement of Claim is extended for a further period of 12 months from 1 March 2017.
Those orders were made against the following background facts.
The plaintiff’s Statement of Claim was filed in the Court by her then solicitors on 2 March 2016 for an action in personal injury arising from an alleged breach of duty by the defendant on 2 March 2013.[1]
At that time, Rule 7.06 of the Local Court Rules was in the following terms:
7.06 Time for service
(1) A statement of claim is valid for service for 12 months after the date on which it is filed.
(2) If a statement of claim has not been served on a defendant, the Court may order that the validity be extended for a period of not more than 12 months from the day of the order.
(3) An application for an extension under subrule (2) is to be made on or before the day on which a statement of claim ceases to be valid and no order for an extension is to be made after a statement of claim ceases to be valid.
(4) Subject to subrules (2) and (3), the Court may make further orders extending…

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: [2018] NTLC 10
Decision Date: 9 March 2018

CaseChat Overview and Summary

In the case of Sarah Miller v JB HI-FI Ltd, the dispute involved an application by the plaintiff, Sarah Miller, to set aside an ex parte order made by the defendant, JB HI-FI Ltd. The plaintiff sought to have the order discharged due to its ex parte nature and the failure to serve the statement of claim within the prescribed time. The matter was heard in the Local Court of New South Wales, which has jurisdiction to consider applications to set aside ex parte orders.

The central legal issue before the court was whether the plaintiff could apply for the discharge of the ex parte order, given that the statement of claim was not served within the required time, and no extension of time could be granted under Rule 7.06 of the Local Court (Civil Jurisdiction) Rules. Additionally, the court had to consider whether Rule 3.03(2) of the Local Court (Civil Jurisdiction) Rules provided any grounds for extending the time for service of the statement of claim.

The court found that the general principle allows a party affected by an ex parte order to apply for its discharge. However, in this case, the plaintiff had not served the statement of claim within the specified timeframe, and no order for an extension of time could be made once the statement of claim ceased to be valid. The court also noted that Rule 3.03(2) of the Local Court (Civil Jurisdiction) Rules does not provide for extending the time for service of a statement of claim in such circumstances. Therefore, the application to set aside the ex parte order was dismissed.

The court's decision was that the application to set aside the ex parte order was dismissed, and no further orders were made. The plaintiff was not granted relief from the ex parte order due to the failure to serve the statement of claim within the prescribed time and the inability to obtain an extension of time under the relevant rules.

Orders