Benz v Paul Everinghma & Co (a firm)
[2002] QDC 239
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- Benz v Paul Everinghma & Co (a firm)[2002] QDC 239
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Benz v Paul Everinghma & Co (a firm)[2002] QDC 239
Benz v Paul Everinghma & Co (a firm)[2002] QDC 239
DISTRICT COURT | No 1421 of 2002 |
APPELLATE JURISDICTION
JUDGE MCGILL SC
ELIZABETH MINA BENZ | Appellant |
and
PAUL EVERINGHAM & CO (A FIRM) | Respondent |
BRISBANE
..DATE 09/08/2002
JUDGMENT
HIS HONOUR: This is an appeal from an order made by a Magistrate on 1 March last year. On that occasion, the Magistrate ordered that an amended counter-claim dated 27 February 2001 be struck out and made an order for costs in favour of the plaintiff. The Magistrates Court file does not record any reasons for that order and there were, apparently, no ex tempore reasons given in relation to it.
The defendant who had filed the counter-claim has appealed on various grounds, but I think it is sufficient to deal with the appeal to consider whether the order was one which necessarily ought to have been made anyway on the ground that the amended counter-claim was seeking to pursue a claim which was not within the jurisdiction of the Magistrates Court.
The amended counter-claim seeks damages for breach of contract, negligence and conflict of interest to be assessed, without complying with the requirement of rule 155 that the pleading must state the nature and amount of the damages claimed. Apart from that difficulty, however, it is apparent from other provisions in the counter-claim where reference is made to certain losses having been caused to the defendant and another person described as second defendant - that was added by counter-claim - that the amount claimed by way of damages is an amount in excess of $2,500,000. It was therefore more than the jurisdictional limit of the Magistrates Court which is an amount of $50,000.
By rule 177 a defendant may make a counter-claim against a party instead of bringing a separate proceeding. However, the procedural device of making a claim in that way does not in itself extend the jurisdiction of a Court such as the Magistrates Court. It would not have been possible for the defendant to bring a separate proceeding in the Magistrates Court seeking $2,500,000 from the plaintiff. Rule 177, therefore, is not a basis to permit a counter-claim to be made in respect of such a claim in the Magistrates Court. There is nothing in the Uniform Civil Procedure Rules by which the jurisdiction which a Court otherwise has is enlarged by virtue of those rules.
The Magistrates Court Act contains no specific provision dealing with the situation where a counter-claim is brought seeking relief which is not within the jurisdiction of the Magistrates Court. In this respect, it differs from the District Court Act. That Act provides in section 86 that:
“Where there is a counter-claim which involves a matter beyond the jurisdiction of the District Court filed by any defendant, any party may within 14 days after the filing of the counter-claim apply to a Judge of the Supreme Court for an order that the whole proceedings or the proceedings on the counter-claim be transferred to the Supreme Court.”
The Supreme Court Judge can then deal with the matter, and has jurisdiction to order that the whole proceedings be heard and determined in the District Court. If such an order is made, or if no application is made within that time, “the District Court shall have jurisdiction to hear and determine the whole proceedings, that is, including the counter-claim, notwithstanding any enactment to the contrary”.
Accordingly, if a counter-claim beyond the jurisdiction of the District Court is filed in the District Court, there is no particular problem. The statutory provision can operate. There is, however, no equivalent to section 86 in the Magistrates Court Act and, in my opinion, the consequence is that a counter-claim seeking relief which is beyond the jurisdiction of the Magistrates Court is simply something which the Magistrates Court does not have jurisdiction to entertain. It is accordingly a proceeding brought within the Magistrates Court where the Court has no jurisdiction.
There was a provision in the Magistrates Court Act, in section 12, which specifically dealt with that situation but that provision was repealed, possibly by accident, in 1998. There is a provision in section 81 of the District Court Act where in subsection (2) there may be a statutory power in a situation such as this for the Magistrate to order that a counter-claim which is seeking relief beyond the jurisdiction of the Magistrates Court can be struck out. However, even apart from that provision a Court, even an inferior Court, has an implied jurisdiction simply from its nature as a Court in every proceeding in which its jurisdiction is purportedly invoked to determine whether it has the jurisdiction which is sought to be invoked.
It is sufficient to refer for authority for that proposition to the remarks of Sir Frederick Jordan in Pezet v. Pezet (1946) 47 SRNSW 45 at 51 and Katz J in Khatry v. Price (1999) FCA 128 9 at paragraph 15.
Accordingly, the Magistrate certainly had jurisdiction to order that the counter-claim be struck out and, in my opinion, that was the order which was appropriate in the circumstances. Unless there is a statutory provision giving the Magistrates Court jurisdiction to entertain such a counter-claim, or a statutory provision giving the Magistrates Court jurisdiction to transfer such a counter-claim to a Court which had jurisdiction to entertain it - namely, the Supreme Court - then the Magistrate really has no choice.
It follows that in my opinion the first order made by the Magistrate was one which was inevitable in the circumstances given the relief sought in the counter-claim and, therefore, should not be interfered with. I should say that in the light of that view, it is not necessary for me to consider some of the other difficulties which arise in relation to the purported amended counter-claim, although it is not immediately apparent to me how someone who is not a defendant in the proceeding can be added to a counter-claim as, in effect, a second plaintiff by counter-claim. However, be that as it may, for other reasons the counter-claim was appropriately struck out.
If the only purported proceeding before the Magistrates Court had been the counter-claim, there might have been some doubt as to the jurisdiction of that Court to make the order for costs which was made in respect of that application. That would follow from the reasoning set out in my decision of Home v. Frank & Ors [2001] QDC 029. However, the Magistrate had jurisdiction in respect of the plaintiff's claim against the defendant and in respect of that proceeding there was jurisdiction to make an appropriate order for costs. So there is no reason to doubt that the Magistrate had jurisdiction in the particular circumstances of this case to make the second order which has been made.
If the first order was appropriate, then there is no reason to question the second order. Accordingly, it is appropriate to dismiss the appeal with costs.