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[2006] VSC 114
Supreme Court of Victoria
2006-01-19
Bongiorno J
Original judgment source is linked above.
Courts - Magistrates Court - practice and procedure - discovery - jurisdiction of Magistrates Court - rules - general principles - r 1.12 Magistrates' Court Rules 1999.
1 An architect has sued a client for the balance of about $13,000 in fees which he claims is owing for architectural services in respect of a property at Harkaway. The form of the claim is in a simple form commonly used in the Magistrates' Court which refers to invoices which have been previously supplied. Those invoices provide some information as to how the sum claimed is made up.
2 In the course of the proceeding the plaintiff has provided discovery in common form. That discovery discloses no drawings, file notes or other internal accounting records which might verify or tend to verify its claim, or at least that is what is alleged by the first defendant. Because of this, the first defendant sought further discovery and to that end made an application to the Melbourne Magistrates' Court which was heard by His Honour, Mr P. Lauritsen M on 7 October 2005.
3 The application before this Court is for judicial review of Mr Lauritsen's decision in which he dismissed the first defendant's application. That application had been that the plaintiff file and serve an affidavit of documents making discovery of all architectural drawings, internal file notes, time sheets, and internal accounting records related to the performance by the plaintiff of architectural services for the defendants at 2-12 Hyde Hill Road, Harkaway. The question for this Court is whether the dismissal of the application constituted an error correctable by judicial review. Specifically, in this instance the question is whether in refusing the application the Magistrate has denied the existence of a jurisdiction which he has and which he ought, in the circumstances, to have exercised.
4 The basis of judicial review of this type is no longer capable of argument. In 1995 the High Court in Craig v South Australia[1] made the situation abundantly clear.
"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist".[2]
5 It is clear here that Mr Lauritsen considered that he had no power to make the order sought by the first defendant. His Honour said:
"I do not have power under our rules unlike the Supreme Court to go beyond making an order for discovery. I cannot go and say 'You have got to discover certain particular categories'".
"In the context of the argument or the submission made by Mr Oliver about the nature of discovery and my power to give it, I do not think I have that power. I do not think it is appropriate to use 136 of the Act itself to supplement and vary what is contained in the particular order relating to discovery; (a) I think it is unnecessary because the common law as to discovery is so broad it does not need people" (then there is an indistinct) "the ability to notify classes of documents is a derogation on the broad powers not a supplement. The Federal Court has it, to an extent the Supreme Court has it under their rules, out rule retains the sort of old approach that it is as broad as anything so you face the famous Santos case circumstances if you are unlucky enough in our court. That is what it implies. Our rule is very broad based and probably inappropriately so given the claim is of a mere $14,000 or so which this is about".
6 The power of a Magistrate to order discovery is derived from the Magistrates' Court's jurisdiction to hear the case before it. Discovery is a concept regulated by the common law and court rules designed to enable litigation to be conducted in a manner conducive to achieving a just result by requiring relevant documents to be disclosed in advance of trial. The Magistrates' Court Rules have adopted a simple approach to discovery consistent with the nature of the court and the matters it normally deals with. They regulate procedure in the ordinary or normal case.
7 This is not to say however that there will not be cases where the nature of the case will require a different approach, although such cases may be rare and the power of a Magistrate to resort to innovative orders may be sparingly used. Their use will always be dependent upon the necessity to achieve a just result in the individual case and will depend, among other things, on the importance of discovery to the case in hand and, most importantly, the magnitude and importance of the case itself. If the Magistrate considers justice requires a particular form of discovery such as that regulated by rules in the Supreme Court, there is no reason why rule 1.12 of the Magistrates' Court Rules should not be employed to adopt the procedure used in the Supreme Court to the necessity of the case in hand.
8 Rule 1.12 is in a form common in the rules of inferior courts which incorporates the practice and procedure of another court where the applicable lower court rules are in some way wanting. Of course it must be remembered that the rules, including the Magistrates' Court Rules exist to assist the attainment of a just result, not to hinder it. In expressing the view that he didn't have the power to accede to the first defendant's request the magistrate fell into jurisdictional error.
9 Thus, prima facie, the first defendant would be entitled to judicial review in the nature of certiorari which would entitle him to have the matter remitted to the Magistrates' Court to be re-heard according to law. However, prerogative relief of this nature is not dependent solely upon the establishment of jurisdictional error. There must also be consideration of discretionary factors going to the granting or withholding of relief.
10 In determining whether it would have been appropriate in this case to grant the orders sought by the first defendant, the magistrate would have had to first look at the form of the claim and the form of the first defendant's defence. In this instance those documents, as I have already said, are somewhat sparse. In particular, the defence of the first defendant as it currently appears on the record, says that he cannot fully particularise his defence unless and until the plaintiff has particularised its claim. He sought to reserve to himself the right to file a further defence or an amended defence as necessary. However, subsequent to that document his solicitor swore a candid affidavit on 30 September 2005 in which he said:
"In order to investigate whether the first defendant has a defence to the plaintiff's claim (including a counterclaim) the first defendant requires full discovery from the plaintiff of its records including a full set of drawings produced by the plaintiff in respect of which the charges have been made following which the first defendant will obtain an expert opinion from a consultant architect".
11 What has occurred here is that the first defendant has received this claim and has sought then, over succeeding months, between about March and September, to find a defence to it. In the course of doing so he has decided that unless he can attack the basis of the plaintiff's claim by reference to a close examination of documents he may not have a defence at all. This is recognised by counsel for the first defendant who has proposed that an amended defence be filed which would raise a defence which might entitle a further investigation of the matter of discovery. Indeed it might require the plaintiff, in the discharge of his continuing obligation of discovery, to file a further affidavit of discovery without further notice. However as the matter presently stands, and as it would have been before Mr Lauritsen, I consider it would not have been inappropriate for the application to have been dismissed on its merits.
12 Having reached that conclusion and without in any way determining those merits, other than in the course of determining whether a discretion ought to be exercised in favour of granting an order in the nature of certiorari, it seems appropriate here that such relief ought not be granted. Whether the first defendant is successful in obtaining leave to amend his defence having regard to the affidavit to which I have referred, or whether following upon that leave, if it is granted, further discovery is offered by the plaintiff in discharge of its continuing obligations is a matter that need not concern me at this stage.
13 In the circumstances the application for judicial review will be refused. The originating motion will be dismissed.
Roux
Robert Mills Architect Pty Ltd [2006] VSC 114
(1995) 184 CLR 163