It is not easy to reconcile s 183 with the provisions of the Act. Section 183 existed long before the Act was enacted in 1992, and was neither repealed nor amended at that time. However a later statute can impliedly repeal or supersede a provision in an earlier statute. It is necessary to consider whether the Act had any such impact on s 183.
The law relating to implied repeal is as stated by Griffiths CJ in Goodwin v Phillips[1908] HCA 55; (1908) 7 CLR 1 at 7, where his Honour said the following:
The reference in s 12(1) to "an action or matter ... over which the Court does not have jurisdiction" would ordinarily be interpreted as including any action or matter for an amount exceeding the "prescribed amount" as referred to in ss 7 and 3. However, such an interpretation would produce a result inconsistent with s 183 of the Supreme Court Civil Procedure Act.
One could perhaps reason that, if s 183 remains in force, then the institution of a counterclaim for a sum exceeding an inferior court's monetary jurisdictional limit does not deprive that inferior court of jurisdiction - that it either has jurisdiction under s 183(3) to the same extent as if the whole counterclaim were within its "absolute competence", or else it has jurisdiction under s 183(1), subject to a proviso that it may not grant relief exceeding its monetary limit. Section 12 of the Act only applies if, in the words of s 12(1), "an action or matter is commenced over which the [Magistrates] Court does not have jurisdiction". One could reason that s 183 remains in force, and that a counterclaim for over $50,000 is not such an action. However that reasoning seems to me to involve a very strained interpretation of s 12(1).
Section 12(1) applies "unless a consent is filed under Because of the wording of , a consent under that section can only ever be a consent that overrides the statutory limitation as to the amount of a claim or counterclaim. If s 183 applies to counterclaims under the , then can apply only to other types of actions and matters, namely claims by claimants as distinct from defendants, and counterclaims seeking some form of relief other than judgment for a sum of money.
In a situation where a defendant counterclaims over $50,000 in the Magistrates Court, if the plaintiff does nothing by way of consent, waiver or objection, and a transfer to this Court is either refused or not sought, then the application of the two statutes may produce different results. If s 183 applies, and the plaintiff has taken no objection based on the quantum of the counterclaim, then the jurisdiction of the inferior court is unlimited by reason of s 183(2)(c). But, in the absence of waiver, ss 7 and 11 of the Act suggest that consent is needed in order for the Magistrates Court to have jurisdiction to hear and determine the counterclaim.
Without s 183, the relevant provisions of the Act would provide a straightforward system of rules governing situations where claims or counterclaims exceed $50,000. That is to say, there is no longer any need for s 183. There are no longer any inferior courts, other than the Magistrates Court, with jurisdiction over money claims. There is no reason to have one set of rules for plaintiffs' claims exceeding $50,000 and a different set of rules for counterclaims exceeding $50,000.
Section 183(2)(a), which I did not set out above, contains redundant provisions about local jurisdictional limits of inferior courts. There have been no such jurisdictional limits since the repeal of the Local Courts Act 1896 by s 41 of the Act.
When a defendant pleads more than one cause of action in a counterclaim, if s 183(2)(b) is still in force, the jurisdictional limit applicable to the counterclaim would be $50,000 for each separate cause of action, not $50,000 for the total counterclaim. That result would be absolutely inconsistent with s 7 of the Act, under which the "prescribed amount" is the limit for an action. That is to say, s 7 provides for $50,000 to be the jurisdictional limit for the total counterclaim.
Having regard to all these matters, I consider that there is a general inconsistency between s 183 and the provisions of the Act relating to the same subject matter. It must follow that the Act impliedly repealed s 183. In determining whether the learned magistrate fell into error on 14 September, that section must be ignored.
On 14 September the learned magistrate knew that the transfer application was pending in this Court, and that the appellants wished to pursue that application. He could have adjourned the proceedings before him to await the outcome of the transfer application.
It is necessary to apply the principles relating to appeals from discretionary decisions that were summarised in House v The King[1936] HCA 40; (1936) 55 CLR 499 by Dixon, Evatt and McTiernan JJ at 504-505, where their Honours said: