THE STATE OF SOUTH AUSTRALIA v CALLIPARI [1992] NSWCA 238

THE STATE OF SOUTH AUSTRALIA v CALLIPARI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 3 September 1992, 16 October 1992 [1992] NSWCA 238

INFERIOR COURTS and TRIBUNALS — District Court — limit of jurisdiction $100,000 — memorandum of consent to enlarge jurisdiction — fourth party proceedings — fourth party not asked to sign memorandum of consent — plaintiff and defendant alone sign memorandum of consent — belated application to enlarge fourth party claim to include in it claim for amount earlier recovered against thirty party by a separate plaintiff — aggregate of two claims is $148,764.02 — fourth party objects to amendment but not on grounds of jurisdiction — trial judge (Nash DCJ) allows amendment, apparently overlooking want of jurisdiction to extend claim beyond $100,000 without consent — subsequently fourth party objects to enlargement of jurisdiction beyond $100,000 — trial judge holds fourth party waived objection to want of jurisdiction — held: In the circumstances, the fourth party had not waived an objection to excess of jurisdiction nor elected to accept jurisdiction nor was it estopped from objecting to excess of jurisdiction. Woodward Pty Ltd and Anor v Kelleher and Anor, Court of Appeal, unreported, 30 May 1989; (1989) NSWJB 91 distinguished; (2) The trial judge's earlier interlocutory order consenting to enlargement of fourth party claim was made without jurisdiction in respect of the second action because it took the fourth party claim beyond the jurisdiction of the District Court; (3) Accordingly, the enlargement of the fourth party claim should be set aside and the judgment confined to recovery of the sum, within jurisdiction, sought in the claim as originally framed. NEGLIGENCE — duty of care — government authority — State Government Motor Registry — representations made by telephone and in person by officer of Registry — representations made in context of serious enquiry concerning provision of registration and compulsory insurance to semi-trailer motor vehicle — judge (Nash DCJ) finds State Government officer advises that vehicle may be driven after issue of interim receipt provided same is attached to vehicle windscreen — owner of vehicle acts in reliance upon advice — vehicle collision later occasions injuries to two persons who make claims against owner — plaintiffs recover from Nominal Defendant upon the ground that the vehicle was in fact uninsured — Nominal Defendant recovers against owner — owner sues State — held: (1) The circumstances were such as to give rise to a duty of care on the part of the State, by its employee, to avoid negligent misstatement or advice upon which it would be known the recipient would be likely to act, as he did, to his detriment.