Roux v Robert Mills Architect [2006] VSC 114
In the Supreme Court of Victoria, Bongiorno J found that a magistrate who considered he had no power to order discovery of particular categories of documents fell into jurisdictional error, but refused judicial review in his discretion because, as the pleadings stood, the application could properly have been dismissed on its merits [5], [8], [11], [12], [13].
What the court decided
An architect sued a client in the Magistrates' Court for the balance of about $13,000 in fees for architectural services [1]. The architect gave discovery in common form, which the client alleged disclosed no drawings, file notes or internal accounting records that might verify the claim [2]. The client applied as first defendant for further discovery, and Mr Lauritsen M heard the application on 7 October 2005 [2]. The magistrate dismissed the application, which sought discovery of architectural drawings, internal file notes, time sheets and internal accounting records [3]. On judicial review, the question was whether the magistrate had denied the existence of a jurisdiction which he had and ought to have exercised [3].
Bongiorno J said it was clear that the magistrate considered he had no power to make the order sought [5]. A magistrate's discovery power derives from the court's jurisdiction to hear the case before it [6]. The Magistrates' Court Rules take a simple approach to discovery consistent with the nature of the court and regulate procedure in the ordinary case [6].
Some cases will require a different approach, although such cases may be rare and the power to make innovative orders may be sparingly used [7]. Such orders depend on the necessity to achieve a just result and, among other things, on the importance of discovery to the case and the magnitude and importance of the case itself [7]. If the magistrate considers justice requires a particular form of discovery such as that under the Supreme Court rules, rule 1.12 of the then Magistrates' Court Rules can be employed to adopt it [7]. In expressing the view that he lacked the power, the magistrate fell into jurisdictional error [8].
Prima facie, the client would therefore be entitled to relief in the nature of certiorari and a remitter for rehearing, but such relief also depends on discretionary factors [9]. The pleadings were sparse, and the client's defence said he could not fully particularise it until the claim was particularised [10]. His solicitor had sworn an affidavit on 30 September 2005 saying that full discovery was needed to investigate whether there was a defence [10]. His Honour said the client had decided that unless he could attack the claim by close examination of documents, he might not have a defence at all [11]. His counsel proposed an amended defence that might warrant further investigation of discovery, or require further discovery under the architect's continuing obligation [11]. As matters stood before the magistrate, his Honour considered it would not have been inappropriate to dismiss the application on its merits [11]. Without otherwise determining those merits, his Honour declined to grant relief [12]. Whether leave to amend would be granted, or further discovery offered, need not concern the court at this stage [12]. The application for judicial review was refused and the originating motion dismissed [13].
Why it matters
The decision indicates that the simple discovery rules of the Magistrates' Court are not a ceiling, and that a magistrate who treats categorised discovery as beyond power may fall into jurisdictional error [7], [8]. Even so, relief was refused because the defence as it stood did not support the application, so a party seeking such orders should first plead the issues the documents are said to go to. The catchwords identify the rule as rule 1.12 of the Magistrates' Court Rules 1999, and readers should check the current rules before relying on it.
Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.