Knight v Bell & Anor [2000] VSCA 48

Court of Appeal (Vic)|2000-04-07|Before: ORMISTON, PHILLIPS and BATT, JJ.A.

For the reasons I have given I think that the appeal must be allowed. In the circumstances all the orders made below on 24 August 1998 should be set aside. There was no error, I think, in the judge's decision to bring to an end summarily the appellant's principal claim (i.e., the claim against the respondent in relation to the so-called lending ratio of 66.67 per cent); that was fatally flawed. The respondents do have a complete answer to that claim, and it may be said to be vexatious for the appellant to be pursuing it (thus attracting Rule 23.01 in relation to that claim). The balance of the proceeding is the claim for damages in respect of chattels and livestock (if that is what the appellant intends by paragraph 32 of the present pleading when coupled with paragraph 35). That claim should not have been the subject of judgment; nor should it be stayed permanently, were it not for two other considerations.

First, the amount involved in the claim over chattels and livestock is small - too small to justify the action continuing in this court. The appellant told us from the Bar Table that, although he was not certain of the details, there were perhaps 100 sheep involved which should have fetched some $15 each; instead they had been sold, he thought for $6. Mr. Elliott told us they had been sold for $900 which suggests that there were perhaps 150 sheep involved. As for the chattels (or other chattels) their worth was said to be about $5,000 so that, whether or not due credit has been given by the respondents to the appellant for the amount realised on sale of these items, the appellant's claim is proper for the Magistrates' Court. I would therefore be strongly disposed to include, if necessary, among the orders we make now by way of substitution for those made below, an order under of the for the transfer of this proceeding to the Magistrates' Court for any further hearing and determination.

That should not, however, be necessary. The claim in respect of chattels and livestock is very poorly pleaded (assuming that I have grasped the intent at all) and the claim must be re-pleaded before the respondents can be expected to answer it. In this respect it is true that the pleading does not disclose a cause of action; it merely suggests one. The simplest course, then, as the respondents have a complete answer to the principal claim, is to order (by way of substitution for the orders made below) that the whole proceeding in this Court be forever stayed under Rule 23.01, but without prejudice to the appellant's bringing a fresh proceeding in the Magistrates' Court for whatever claim he seeks to make in respect of the chattels and livestock - but only the chattels and livestock. And that is the order that I would make.

There should be no order in substitution for paragraph 2 of the orders below. I would hear the parties on costs.

I have had the benefit of reading in draft the reasons for judgment of Phillips, J.A. I concur in them and with the orders his Honour proposes.

I would add this. If (as I think notwithstanding its use of the word "application") the second order made on 24 August 1998, which is set out in the reasons of Phillips, J.A., on its true construction prevents the commencement by the appellant of any new proceeding relating to the transactions the subject of proceeding No.451 of 1998, then, besides being unwarranted in the circumstances, it was beyond power[7]. That would not be so if on its true construction the order is limited to applications in the existing proceeding[8]. But the order would, in my view, still be unwarranted. It is scarcely necessary to say that the order in question could not be justified under s.21 of the Supreme Court Act 1986 because it was not obtained by the Attorney-General.

[3] (1989) 34 I.R. 466 at 475 per Gleeson, C.J.

[4] Under r.23.02: cf. Turner v. Bulletin Newspapers [1974] HCA 25; (1974) 131 C.L.R. 69

[8] Commonwealth Trading Bank v. Inglis at 319 and Guss v. Magistrates' Court of Victoria [1998] 2 V.R. 113 esp. at 122.

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