Extrastock Pty Limited v Dun & Bradstreet (Australia) Pty Limited [2006] NSWSC 59

New South Wales Supreme Court

CITATION : Extrastock Pty Limited v Dun & Bradstreet (Australia) Pty Limited [2006] NSWSC 59

HEARING DATE(S) : 15 February 2006

JUDGMENT DATE : 22 February 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The application to amend the summons is refused; the summons is dismissed; the question of costs is reserved and that question is referred to a registrar for determination.

CATCHWORDS : Confusion as to order made by magistrate in chambers - appeal from interlocutory order (to grant a stay of proceedings) brought out of time - alleged denial of natural justice and lack of reasons - extension of time and leave.

LEGISLATION CITED : Local Court (Civil Claims) Act 1970 (NSW), s18 Service and Execution of Process Act 1992 (Cth), s20

PARTIES : Extrastock Pty Limited (Plaintiff) Dun & Bradstreet (Australia) Pty Limited (Defendant)

FILE NUMBER(S) : SC 13756/05

COUNSEL : Mr A Lakeman (Plaintiff) Mr P Strasser (Defendant)

SOLICITORS : Mackintoshs (Plaintiff) S J Gurnsey & Co (Qld) (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 12433/04

LOWER COURT JUDICIAL OFFICER : Lulham LCM

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

22 February 2006

13756 of 2005 Extrastock Pty Limited v Dun & Bradstreet (Australia) Pty Limited

JUDGMENT 1 His Honour: The plaintiff retained the services of the defendant in respect of an alleged overseas debt. A settlement took place between the defendant and the debtor. A dispute then arose between the plaintiff and the defendant concerning the nature of the retainer. 2 The plaintiff commenced proceedings in the Local Court (a statement of claim being filed on 12 November 2004). 3 On 26 November 2004, the defendant filed a notice of motion. It sought an order that the matter be transferred to the jurisdiction of the Queensland Magistrates Court pursuant to s18 of the Local Court (Civil Claims) Act 1970 (NSW). It was supported by an affidavit. 4 There is no dispute between the parties that the order that was sought could not have been made. However, the court did have the power conferred by s20 of the Service and Execution of Process Act 1992 (Cth) where it was satisfied that a court of another State had jurisdiction to determine the matter. This provision conferred a discretionary power to order a stay of proceedings. 5 On 2 December 2004, the court wrote a letter to the plaintiff (to which a copy of the notice of motion was attached). It was signed by a registrar. The contents of the letter were as follows:- I refer to the abovementioned and advise that the defendant has filed a Notice of Motion (attached) seeking orders pursuant to S.20 of the Service and Execution of Process Act 1992 that proceedings in this Court be stayed and that a court in the State of QUEENSLAND is the most appropriate court to determine the issues between the parties. The Notice of Motion will be determined by a Magistrate in chambers at the expiration of fourteen (14) days from the date of this letter. Therefore, you should ensure that any responses are received in the registry within fourteen (14) days from the date of this letter. Please mark your responses to "Attention Court Section Manager", and do not hesitate to contact the telephone enquiries line on 9287 7923 if you require any additional information. 6 The plaintiff did not object to the course that was outlined in the letter. It made a response within the specified time (an affidavit which put competing material before the Magistrate). 7 On 10 January 2005, a decision was made in chambers. Thereafter, some doubt arose as to what had actually been done by the Magistrate. However, it is sufficiently clear from the court file that what was done saw the granting of a stay of proceedings. A note in the handwriting of the Magistrate (Lulham LCM) and signed by him, is in the following terms:- Stay of proceedings pursuant to Sec 20 appropriate court Queensland … 8 Unfortunately, by letter dated 17 January 2005, the Court advised the plaintiff as follows:- An order has been made pursuant to Section 18 of the Local Courts (Civil Claims) Act 1970 for the change of venue in this matter to the Local Court at Queensland.