Lambert v Surplice[2004] QDC 92

[2004] QDC 092

DISTRICT COURT

CIVIL JURISDICTION

JUDGE McGILL SC

No BD814 of 2004

BRISBANE

DATE 14/04/2004

ORDER

HIS HONOUR: This is an application under section 79 of the District Court Act to transfer to the District Court a proceeding pending in the Magistrates Court.

The circumstances are that the existing proceeding which was commenced on the 18th of August 2003 claims $50,000 damages for negligence. The statement of claim, which is attached, indicates that the plaintiff's claim is in respect of personal injuries arising out of a motor vehicle accident. The existing claim for $50,000 for damages for negligence is a claim which can be made in the Magistrates Court and is within the jurisdiction of that Court although it could also have been made in the District Court.

However, the applicant's solicitor has formed the view that the action should be in the District Court rather than the Magistrates Court on the basis that there is reasonable ground for supposing that the plaintiff's claim may exceed the sum of $50,000. Accordingly, the applicant is seeking to have the matter transferred to the District Court.

I take it that, strictly speaking, what the applicant's solicitor was intending to depose to was that the plaintiff wishes to claim an amount in excess of $50,000 since the plaintiff, with the benefit of legal advice, believes that she may receive, in respect of her claim, an amount in excess of $50,000.

Section 79 provides relevantly:

"Where there is now or hereafter pending in a Magistrates Court an action, the plaintiff may at any time apply to the District Court for an order to transfer the action to the District Court on the ground that there is reasonable ground for supposing that the relief or remedy sought (which would be available if the action were transferred to the District Court) is not available in the Magistrates Court."

The reference to the relief or remedy sought must be a reference to the relief or remedy the plaintiff in the existing action actually seeks. If the action had been commenced in the Magistrates Court seeking relief which was not available in the Magistrates Court but would be available in the District Court, then the appropriate course would be for the Magistrates Court to transfer the action to the District Court under section 5A of the Magistrates Court Act 1921.

However, section 79 assumes that the relief sought is not available in the Magistrates Court and presumably therefore is not a reference to the relief currently sought in the proceeding. In those circumstances, it seems to me that the obvious interpretation of the section is that it is a reference to the relief or remedy which the plaintiff really now seeks to pursue and wants to be able to pursue in the District Court, which relief or remedy the District Court could provide but which the Magistrates Court could not provide.

In those circumstances, what the Court has to be satisfied about is that there is reasonable grounds for supposing that the plaintiff really does seek relief or remedy which is not available in the Magistrates Court, but would be available if the action were transferred to the District Court. In circumstances where the claim is for a sum of money by way of a personal action, then that simply means that the plaintiff is really seeking an amount in excess of $50,000 but not above $250,000.

It must be remembered however that the District Court and the Magistrates Court have all sorts of other jurisdiction and section 79 is no doubt worded in terms which are intended to apply generally whatever the nature of the claim and whatever the particular parameters of the limits of jurisdiction which are relevant to a claim of that nature.

It may be of some significance that the section is headed "Plaintiff's Right to Transfer Action from Magistrates Court to District Court" which rather suggests that the legislature had in mind that there was not to be much in the way of independent discretion exercised by the Court; that essentially, the plaintiff had a right to transfer if the plaintiff sought a remedy which was not available I the Magistrates Court, but was available in the District Court; that essentially, the capacity to activate section 79 lay with the plaintiff.

That approach would seem to me to be consistent with the decision on the similar analogous provision of the Act, section 82, dealing with the transfer of a proceeding pending in the District Court to the Supreme Court, of Justice Fryberg in Woodward v. Bernafon Australia Pty Ltd [2002] QSC 227. His Honour there drew attention to the fact that section 82 had been amended and that there was no longer a restriction on transfer, that there were reasonable grounds for supposing the amount recoverable in respect of the claim be in excess of the amount recoverable in the District Court.

A restriction in those terms invites some attention to the amount the plaintiff will actually receive as a result of the litigation of the action. But where the issue is whether the relief or remedy sought is not available in the District Court or, in the case of this application, not available in the Magistrates Court, the only question is, what relief or remedy is the plaintiff really seeking.

His Honour said that in policy terms this was a sensible amendment and:

"It makes perfect sense for the legislature to provide, in effect, that simply by asking for it the plaintiff ought to be able to transfer an action from the District Court to this Court." (Page 4).

With respect, I entirely agree. The situation is that section 5A of the Magistrates Court Act deals with a situation where a matter is commenced incorrectly in the Magistrates Court, and section 78 of the District Court Act deals with the opposite situation where a matter is commenced in the District Court or pending in the District Court which, without the consent of all parties, might have been brought in the Magistrates Court. That depends necessarily on the claim which is made. It is not something which depends on any assessment by a District Court Judge of the plaintiff's prospects of success in that claim.

Section 78 does not, in my opinion, give a power in a case where there is a claim for an amount in excess of the jurisdiction of the Magistrates Court for a District Court Judge to remit a proceeding to the Magistrates Court simply on the ground that that Judge is of the opinion that the plaintiff will not recover more than the jurisdictional limit of the Magistrates Court.

In the same way and consistently with that approach, indeed consistently with the structure generally of both the Magistrates Court Act and the District Court Act, it is appropriate that the plaintiff, in effect, should have a right to transfer the pending proceeding to a higher Court simply by deciding to increase the amount of the claim so that it is only within the jurisdiction of that higher Court.

It would be, in my opinion, wasteful and inefficient for a plaintiff to have to discontinue the existing proceeding and start a fresh proceeding in a new Court, and indeed there could well be problems because of the expiration of limitation periods.

It is also, in my opinion, inconvenient for a Judge, sitting in chambers, to have to assess the plaintiff's prospects of success and the extent of that likely success in an application of this nature. What if the Judge were wrong about the matter?

The whole proposition is, I think, most unsatisfactory. Far from the interpretation in Woodward being an irrational and inconvenient interpretation of the section, it strikes me as one which is an entirely appropriate interpretation and one which is plainly consistent with the legislative intent, which is a rational and convenient arrangement.

In these circumstances, all I need to be satisfied about is that the plaintiff has decided to claim - or really wishes to claim - an amount of more than $50,000. That proposition was not really contentious and I am satisfied by the existing material that that is established. In those circumstances, it seems to me that the practical effect of the section is as indicated in the title. The plaintiff has the right to transfer the actions from the Magistrates to the District Court. And there will be an order accordingly. Do you have a draft order, Mr Lee?

...

HIS HONOUR: I note that in the decision of Woodward - to which I referred - his Honour ordered the respondent to pay the applicant's costs, to the extent that they exceeded the costs the plaintiff would have incurred if the matter proceeded under rule 666, that is by a consent order, and that otherwise the costs be costs in the cause. That is a sensible and precise way of dealing with the costs, but in all the circumstances, it seems to me that the costs associated with this application have so substantially been associated with the resistance to the application that it is unnecessary, in the circumstances of this application, for me to be as precise, and that a broad brush approach to the question of costs would justify an order simply that the respondent pay the applicant's costs for the application to be assessed. So, that is the order.