Carcamo v Vamtell Pty Limited T/As Lennons Health Club [1998] ACTSC 66 (14 July 1998)

Last Updated: 13 October 1999

Carcamo v Vamtell Pty Limited T/AS Lennons Health Club [1998] SCACT 66 (14 July 1998)

CATCHWORDS

PRACTICE & PROCEDURE - Personal injury claim - Transfer from Magistrates Court to Supreme Court - Jurisdiction of the Master to hear application - Recent amendment and re numbering to the Magistrates Court (Civil Jurisdiction) Act 1982 not reflected in the Supreme Court Rules - Construction of the grant of jurisdiction - Interpretation Act 1967 - Undesirability of annexing medical reports to affidavits in support of applications to transfer.

ACT Supreme Court Rules, O.61A, r1(s)

Magistrates Court (Civil Jurisdiction) Act 1982, Part XX (formerly XIX), s.383

Magistrates Court (Civil Jurisdiction) Act Amendment Act 1997

Interpretation Act 1967, s.41A

Subordinate Laws Act 1989, s.9

Civil Procedure ACT: 52,730.5

Braithwaite v Philpot, (unreported, Master T Connolly, Supreme Court of the ACT, 12 December 1997, SC 801 of 1997)

No. SC 447 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 14 July 1998

IN THE SUPREME COURT OF THE )

) No. SC 447 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GREGORY CARCAMO

Plaintiff

AND: VAMTELL PTY LIMITED t/as

LENNONS HEALTH CLUB

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 10 July 1998

THE COURT ORDERS THAT:

1. The plaintiff's claim in the Magistrates Court in the Australian Capital Territory number CS 62141 of 1996 between Gregory Carcamo as the plaintiff and Vamtell Pty Limited trading as Lennons Health Club as the defendant be transferred to the Supreme Court of the Australian Capital Territory.

2. Costs be reserved.

1. This matter involved an application to transfer proceedings commenced in the Magistrates Court to the Supreme Court pursuant to s.383 of the Magistrates Court (Civil Jurisdiction) Act 1982. The application relates to an action for damages for personal injuries which was commenced in the Magistrates Court, but where, in the opinion of an experienced practitioner acting for the plaintiff, the award of damages is likely to exceed the jurisdictional limit of the Magistrates Court. On the basis of this evidence I was satisfied that an order should be made transferring the matter with costs reserved (Braithwaite v Philpot, (unreported, Master T Connolly, Supreme Court of the ACT, 12 December 1997, SC 801 of 1997), and see generally Civil Procedure ACT at 52,730.5).

2. However, it seemed appropriate that I should publish reasons concerning a jurisdictional issue which requires clarification pending amendment to the Rules of the Supreme Court. My jurisdiction as Master is defined by the Supreme Court Act and Rules, and it is, unlike the jurisdiction of a Judge, a defined and limited jurisdiction. It has always been the case that applications to transfer proceedings from the Magistrates Court to this Court have been made before the Master, and such applications are very routine.

3. The source of jurisdiction to entertain such applications is to be found is Order 61A rule 1(s) which provides that the jurisdiction of the Court may be exercised by the Master

"...in the hearing and determination of applications under Part XIX of the Magistrates Court (Civil Jurisdiction) Act 1982 regarding the transfer of proceedings."

4. Section 383 of the Magistrates Court (Civil Jurisdiction) Act 1982 ("the Act") which is the source of power to order a transfer of proceedings was, until the Magistrates Court (Civil Jurisdiction) Act Amendment Act 1997, contained in Part XIX of the Act. The amending Act, however, inserted some new provisions in the Part of the Act relating to enforcement of judgments of the Magistrates Court, and also took the opportunity to re number the Parts of the Act, with the effect that, since the amending provisions came into force on 28 May 1998 , the power to order that proceedings be transferred from the Magistrates Court to this Court is found, not in Part XIX of the Act, as stated in the Rules, but in Part XX of the Act.

5. I am satisfied that this does not affect the validity of my jurisdiction to make an order pursuant to s.383 of the Act. The Interpretation Act 1967 provides in section 41A that, where an Act contains a reference to another Act, then unless the contrary intention appears the reference is to be construed as a reference to that other law as originally enacted and amended from time to time, and that where the other law has been repealed or re enacted or re made, the reference shall be construed as a reference to the other law as re enacted or re made. This provision must apply in interpreting Rules of Court which are a form of subordinate legislation (Subordinate Laws Act 1989 s.9).

6. I am thus satisfied that the grant of jurisdiction in Order 61A rule 1(s) to hear and determine applications under Part XIX of the Act regarding the transfer of proceedings must now be construed as referring to the equivalent and indeed identical provisions which are now to be found in Part XX of the Act. I consider therefore that I may validly exercise the power to make the order that I have made in this case, and that in the many cases where the power has been exercised since the re numbering of the Act occurred on 28 May 1998 the power has also been validly exercised.

7. It is perhaps also appropriate for me to again make the observation that I originally made in Braithwaite v Philpot concerning the material to be included in an affidavit in support of an application. From time to time practitioners, for an abundance of caution, include in an application copies of medical reports which have been relevant to their decision that a matter may attract an award of damages greater than the jurisdictional limit of the Magistrates Court. I see this practice as undesirable, as such medical reports are likely to be in issue in the final hearing and determination of the matter, which is likely in many personal injuries cases that come into the Masters list. It is unnecessary, and potentially undesirable, for an affidavit to annex the medical opinions which are likely to form part of the case at final hearing. (Civil Procedure, ACT at 52,730.5).

I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 14 July 1998

Counsel for the Plaintiff: Mr W Coombes

Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: Ms F Miron

Instructing Solicitors: Hunt & Hunt

Dates of hearing: 10 July 1998

Date of judgment: 10 July 1998

Date of reasons for judgment: 14 July 1998