Sims Sales and Marketing Pty Ltd v Westate Piping Services Pty Ltd

[2007] WADC 182

SIMS SALES AND MARKETING PTY LTD -v- WESTATE PIPING SERVICES PTY LTD [2007] WADC 182

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 182
Case No:	CIV:1297/2007	Heard:	17 SEPTEMBER 2007
Coram:	REGISTRAR KINGSLEY	Delivered:	16/10/07
Location:	PERTH
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed on basis to power to order transfer
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Parties:	SIMS SALES AND MARKETING PTY LTD WESTATE PIPING SERVICES PTY LTD
Catchwords:	Practice Application to transfer case from Magistrates Court to District Court Magistrate Court cases not within jurisdiction of District Court No complexity of fact or issue of law
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 Magistrates Court (Civil Proceedings) Act 2005, s 39(4)
Case References:	Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : SIMS SALES AND MARKETING PTY LTD -v- WESTATE PIPING SERVICES PTY LTD [2007] WADC 182 CORAM : REGISTRAR KINGSLEY HEARD : 17 SEPTEMBER 2007 DELIVERED : 16 OCTOBER 2007 FILE NO/S : CIV 1297 of 2007 BETWEEN : SIMS SALES AND MARKETING PTY LTD

Plaintiff

AND

WESTATE PIPING SERVICES PTY LTD
Defendant

Catchwords:

Practice - Application to transfer case from Magistrates Court to District Court - Magistrate Court cases not within jurisdiction of District Court - No complexity of fact or issue of law

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Magistrates Court (Civil Proceedings) Act 2005, s 39(4)

(Page 2)

Result:

Application dismissed on basis to power to order transfer

Representation:

Counsel:

Plaintiff : Mr M J Ahern
Defendant : Mr A D Wilson

Solicitors:

Plaintiff : Aherns Lawyers
Defendant : Frichot & Frichot

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

Nil
(Page 3)

1 REGISTRAR KINGSLEY: The plaintiff Sims Sales Marketing Pty Ltd ("Sims Sales") has brought an application for orders that pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004 Fremantle Magistrates Court civil Nos. 1265 of 2006 and 1266 of 2006 be consolidated and transferred to this court to be heard in conjunction with this action.

2 In support of the application is an affidavit sworn by Mark Sims ("Sims") on 24 July 2007. Sims deposes that in relation to Fremantle Magistrates Court civil No. 1265 of 2006 Sims is claimant and BLS Industries Pty Ltd ("BLS") is named as defendant. In that summons Sims claims the sum of $20,280 being monies due and owing from the defendant to Sims by reason of the defendant's failure to pay his superannuation entitlements. The action appears to relate to a cheque drawn on the defendant's Commonwealth Bank account in payment of Sims' superannuation entitlement. By letter dated 6 April 2006 Commonwealth Financial Services, as manager of the Commonwealth Bank cash management trust (Sims' self managed superannuation fund), Sims was notified that the defendant's cheque in the sum of $20,280 had been stopped by the defendant. The defence of BLS is that it is not liable to pay Sims any amount in respect of superannuation and denies a breach of agreement.

3 In the Fremantle Magistrates Court civil No. 1266 of 2006 Sims Sales is the claimant and BLS is the defendant. The claimant claims $9,892.64 being $8,250 owing under an invoice for unpaid services and $984.94 being payment made by Sims Sales on behalf of BLS.

4 The claim in this case relates to consulting services carried out for the defendant and business expenses paid by Sims Sales on behalf of the defendant. The defendant denies that it is liable to the claimant for the amount and denies that the claimant provided consulting services and denies that there is any cause in relation to the payments made by Sims on behalf of the defendant.

5 In these proceedings Sims on behalf of Sims Sales deposes that the issues to be determined in this court are the ownership interests held by the parties in plant and equipment of BLS of which Sims was once a director. Sims deposes that this action and the two Magistrates Courts' actions all centre on the relationship between Sims, his company Sims Sales and BLS. Sims deposes that it would be a waste of time and cost for himself and the principal director of BLS, Leon Bertei, to give detailed evidence in the District Court and then either shortly prior or

(Page 4)

thereafter to give the same evidence about their company and business relationships in the Magistrates Court. Sims deposes that it would be just, expedient and cost effective for the parties for all of the proceedings to be dealt with together in the main proceedings before this Court.

6 Section 39(4) Magistrates Court (Civil Proceedings) Act 2005 provides that:

"the superior court (which means the District Court or the Supreme Court) may make such an order (for a case or part of a case to be transferred to the superior court) if it is satisfied that all or part of the case is within its jurisdiction and –

(a) involves a claim by the claimant or other party, or an issue, that is outside the Magistrates Court's jurisdiction; or

(b) should be dealt with by the superior court because of its complexity or because of a question of law involved."

7 In my opinion there are two questions to be asked by the judicial officer hearing a transfer application. The first question is whether the judicial officer is satisfied that all or part of the case is within the superior court's jurisdiction. If the question is answered in the negative then in my opinion the transfer fails. If the question is answered in the positive then the judicial officer goes on to consider the two sub-parts of s 39(4).

8 In the Fremantle civil court proceedings, the matters are clearly not within the jurisdiction of this Court. Accordingly on my analysis of s 39(4) that is where the issue ends. As I am satisfied that no part of the case is within the jurisdiction of the District Court, there is nothing further to consider. In any event the matters in the Fremantle Magistrates Court are not, by their nature, complex, and no question of law is involved.

9 This is not the case where issues of efficiency and fairness can be imported into s 39. Section 39 is clear on its face and, in my opinion, does not admit notions of promoting the just determination of litigation, the disposition efficiently of the business of a court, nor the maximising of the efficient use of available judicial and administrative resources nor facilitating the timely disposal of the business of the court at a cost affordable by the parties.

10 Accordingly, in my opinion as I am not satisfied that all or part of the Fremantle court cases are within this court's jurisdiction, I have no power

(Page 5)

to order that they be transferred to this court. It follows then that the issue of consolidation need not be considered.

11 I will hear counsel as to the terms of the orders and as to costs.