DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant bought an originating application seeking the following orders:

1. 1.
   9(3A) and 35 of the Personal Injuries Proceeding Act 2002 (PIPA) that the respondent deliver the Part 2 Notice of Claim within 14 days of the order of the court.

2. 2.
   22(1) and 5(a) and s 35 of the Act that the respondent deliver a copy of Dr Prentice’s report within 14 days of the order of the court.

3. 3.
   The respondent pay the applicant’s standard costs of and incidental to the application on the standard basis.

2. [2]
   At the hearing the applicant’s solicitor advised that the applicant would not be proceeding in relation to paragraphs (1) and (2) of the relief sought given that the respondent had complied with the terms of the orders sought. So, the only issue before the court is the question of costs.

3. [3]
   Counsel for the respondent resisted an order for costs and sought indemnity costs of the application on two grounds:

1. (a)
   that the court was without jurisdiction to entertain such an application; and

2. (b)
   assuming the court had jurisdiction, the correct District in which the application should have been brought was the District Court, Southport.

4. [4]
   The definition of court in the Personal Injuries Proceedings Act 2002 relevantly provides:

‘court’ in relation to a claim means:

1. (a)
   …

2. (b)
   if no proceeding based on the claim has been started – a court with jurisdiction to hear the claim.”

The respondent conceded that the application was a proceeding within the above definition which is undoubtedly a correct concession; see Morrison-Gardiner v Car Choice Pty. Ltd.^[1]

5. [5]
   Under s 68(1) (a) of the District Court of Queensland Act 1967 (Act), the District Court has jurisdiction to hear and determine, inter alia:

“(a)all personal actions, where the amount … damage sought to be recovered does not exceed the monetary limit …”

6. [6]
   By subsection (2) the monetary limit means $250,000.

7. [7]
   The Respondent argued that the applicant had not put before the court any material to evidence the claim fell within the monetary jurisdiction of the District Court.

8. [8]
   Various sections in PIPA contemplate applications to the court before any proceedings are commenced. Indeed, the nature of the legislation is such that an applicant is prohibited from commencing proceedings until certain pre‑proceeding steps are completed.  Sections 20D, E, F, H, I, s 30(3) and s 35 are but examples of instances where the court may entertain an application notwithstanding the proceedings have not been commenced.  These sections are consistent with the abovementioned definition of court which specifically refers to the situation where no proceedings have been commenced.

Jurisdiction

9. [9]
   In Startune Pty Ltd v Ultra‑Tune Systems (Aust) Pty Ltd,^[2] , the then Full Court , was called upon to consider, on appeal, whether or not the District Court had jurisdiction to grant the injunction it had granted under the Trade Practices Act 1974. The cause of action in the plaint commencing the action was stated to be “injunctive relief, damages, and other relief for contravention of s 52 of the Trade Practices Act 1974”.

10. [10]
    Whilst lengthy, it is appropriate to set out in full the unanimous decision of the court (McPherson, de Jersey, Lee JJ) on the issue of jurisdiction.  The court said:^[3]

“At the hearing before the learned District Court judge the defendant submitted that there was no jurisdiction in that court to grant the injunction.  The basis of that submission was that, while s 86(2) of the Act invests State courts with federal jurisdiction with respect to a matter in respect of which a civil proceeding has been instituted under specified provisions of that Act, it does so subject to limitations imposed in s 86(2) itself and also in s 86(3).  These are that by s 86(2), jurisdiction is invested within the limits of the jurisdiction of such courts; and that s 86(2) is not to be taken as enabling an inferior court of a State to grant a remedy other than a remedy ‘of a kind’ that the court is able to grant under the law of the State:  see s 86(3).

The District Court is not, like the Supreme Court, a court of general jurisdiction but of defined and limited jurisdiction.  It is therefore an ‘inferior’ court within the meaning of s 86(3).  See, on this distinction, W v W (1982) 151 CLR 491, 509.  Its jurisdiction and powers are therefore limited in accordance with both ss 86(2) and 86(3).  As to the latter, the only source of power that is relevant in this case is s 67(2)(b) of the District Courts Act 1967-1989.  It enabled a District Court, in any proceeding in which jurisdiction is conferred under Part V of that Act, to grant relief by way of injunction in the proceedings.

Hence, in order to attract the power to enjoin under s 67(2)(b), there must first be some proceedings in which jurisdiction is conferred under that Part.  For present purposes, that means proceedings of a kind described in s 67(1)(a), of which the only relevant category is ‘personal actions, where the amount … sought to be recovered does not exceed the monetary limit …’.  A claim for damages under statute may be regarded as satisfying that description:  see Ames v Higdon (1893) 69 LT 292; but only if its amount does not exceed the monetary limit.  By s 66(2), the monetary limit is $200,000.  However, in this case the plaint in its original form claimed no particular amount at all.  Without a claim for an amount within the limit, the proceeding in this case was not demonstrably within the jurisdiction conferred by s 66(1)(a), and so not capable of attracting the power conferred by s 67(2)(b) to grant relief by way of injunction.  See R v Cheshire County Court Judge and United Society of Boilermakers; ex parte Malone (1921) 2 KB694, and De Vries v Smallridge (1928) 1 KB 482.  It would, in my view, follow that in the state of the plaint as it then stood, an injunction was not ‘a remedy of a kind’ that a District Court was ‘able to grant under the law of’ this State, so as to attract the authority conferred by s 86(2) and s 86(3) of the Trade Practices Act 1974 (Cth).  On this point I would, with respect, adopt the interpretation of those provisions in the reasoning of Shepherd J in Brava Soft Furnishing Pty Ltd v TRW Carr Pty Limited (FCA No NG1200/1988; Federal Court, Sydney, 4 September 1989 unreported).

The learned judge ought therefore to have given effect to the objection that he had no jurisdiction to grant the injunction sought …”

[My emphasis]

11. [11]
    In Matelot Holdings Pty Ltd v Gold Coast City Council^[4] the Full Court again considered the issue of jurisdiction.  In that case, the plaintiff sought, in the District Court, declarations and an injunction restraining the defendant Council from taking any action to recover moneys under a bank guarantee.  That decision was also unanimous (Thomas, Derrington, Moynihan JJ).  The court said that the exercise of determining whether there is jurisdiction requires as a first step the identification of the cause of action.^[5]  The plaintiff / appellant conceded that the only arguable provision under which the action could have fallen was s 66(1) (b) (xxiii) of the Act. [now s 68(1)(v)(xxiii)] as being a question of construction of a written instrument.

12. [12]
    The court found there was no construction point relating to the particular document so that the abovementioned characterisation of the action failed. It said, in truth, the action was one for an injunction based upon an equity to restrain the exercise of a power under a bank guarantee and that such a claim did not fall under the then equivalent of the current s 68 of the Act. As such, the action was not within the jurisdiction of the District Court, which had no power to grant the injunction.

13. [13]
    These cases establish that to attract the jurisdiction of the District Court, it is necessary that the cause of action is one invested in the court to hear and determine. Section 68 of the Act particularises the civil jurisdiction of the court.  The potential cause of action in the present situation is one under s 68(1) (a) which invests the court with jurisdiction to hear and determine personal actions not exceeding the monetary limit of $250,000 specified in s 68(2).  Accordingly, for the court to have jurisdiction to entertain the applicant’s substantive application, it is necessary for the applicant to establish that the court had jurisdiction within s 68 (1) (a). There is nothing in the applicant’s material addressing that issue with the result that the applicant failed the threshold requirement of establishing that the court had jurisdiction to hear the application. Until that requirement is satisfied the inevitable outcome is that the court has no jurisdiction to hear the application.

14. [14]
    Given that the application is, by its very nature, one of a type to be made before any action is commenced, what material would be normally sufficient to attract the court’s jurisdiction?

15. [15]
    Occasions will arise when an applicant in the position of the present applicant will not be able, at point of application, to point to stabilised injuries which allow of a proper consideration of the likely entitlement to damages. Where the injuries of the applicant have stabilised it would be sufficient in my opinion for the applicant’s solicitor to depose to the relevant facts then available to establish that the damages the applicant might expect to recover would bring the future action within the jurisdictional limit of the District Court. Where an applicant’s injuries have not stabilised, it seems to me the best an applicant could do is to depose, personally or by solicitor, that, on the facts then known, it is likely that, upon stabilisation of the injuries, it is likely that the entitlement to damages would be within the jurisdiction of the District Court and that it is the applicant’s present intention to commence proceedings in that court when appropriate. Again, all relevant facts available on the issue should be put before the court. I cannot see that any more precision could be offered than that.

16. [16]
    Although they were concerned with applications for transfer of actions from the District Court to the Supreme Court, guidance in the present context is to be found in two decisions referred to by the Court of Appeal in Merrin v Cairns Port Authority.^[6] They are Lovell^[7] and Doo v Murphy^[8]. They exemplify the importance of any opinion as to prospective damages being properly factually supported by affidavit evidence rather than merely the expression of an opinion by an applicant’s solicitor on the issue. Of course, at the end of the day, it will be the opinion of the court not the applicant’s legal advisor, which will determine the issue of jurisdiction.

17. [17]
    If, in either of the above scenarios, it is later found that the damages suffered by the applicant are likely to attract an award in excess of the District Court jurisdiction, then the District Court of Queensland Act 1967 contemplates that contingency.  Section 82 provides for an application to have a District Court proceeding transferred to the Supreme Court.  Section 85 deals with the procedure to be followed by the court in the event that it considers it does not have jurisdiction to hear and decide a proceeding started in that court.  Further, s 73 allows a plaintiff to commence an action in the District Court for an amount in excess of its monetary jurisdiction if the plaintiff abandons the excess over and above that monetary limit.  In that event, the plaintiff may recover an amount up to the jurisdictional limit.  These sections show that the court is well able to deal with questions of appropriate jurisdiction which may arise subsequent to the legitimate commencement of a proceeding in the District Court including those where the court considers that the party starting the proceedings knew or should have known that the court did not have jurisdiction (s 85(4)).

18. [18]
    Given my finding that the applicant’s substantive application was not demonstrated to be within jurisdiction, what order should be made on the issue of costs? Section 85 of the Act contemplates such a situation.  It provides:

“85.Procedure if proceedings started in wrong court

1. This section applies that the District Court considers the court does not have jurisdiction to hear and decide a proceeding started in the court.

2. If the District Court considers the Supreme Court has jurisdiction to hear the proceeding, the District Court may, by order, transfer the proceeding to the Supreme Court.

3. Subsection (2) does not apply to a proceeding that may or must be struck out under subsection (4) or (5).

4. If the District Court considers that the party who started the proceeding knew, or should have known, that the court did not have jurisdiction to hear the proceeding, the court may strike out the proceeding and order that the party who started the proceeding to pay the costs of the other party to the proceeding.

5. If the District Court does not have jurisdiction then the proceeding may not be transferred under subsection (2) or struck out under subsection (4), the court:

1. (a)
   must strike out the proceeding; and

2. (b)
   may order the party who started the proceeding to pay the costs of the other party to the proceeding.

6. In this section:

proceeding includes appeals.”

19. [19]
    This is not a case of a possible transfer to the Supreme Court under s 85(2). Further, there is no evidence before me to support a finding that the applicant knew or should have known that this court did not have jurisdiction to hear the proceeding in terms of s 85(4).  In all the circumstances, I consider the appropriate order to be made is one under s 85(5) striking out the application and I so order.

Filing in Incorrect District

20. [20]
    Given my finding that the court lacked jurisdiction to hear the substantive application, it is unnecessary for me to consider the second of the respondent’s grounds of argument as to the appropriate district for the filing of the application.

Costs 

21. [21]
    Whereas the striking out under s 85 (5) (a) is mandatory once the section is enlivened, the question of the appropriate costs order is discretionary under s 85 (5) (b). Given that the applicant was forced to bring the application, albeit an ill‑fated one, because of the respondent’s failure to comply with her obligations under the Personal Injuries Proceeding Act 2002 to deliver her Part 2 notice of claim and a copy of Dr Prentice’s report in a timely manner, I do not consider that an order for costs in favour of the respondent is appropriate.  Had she complied with her obligations, the application would not have been necessary. Further, as was said in Startune Pty Ltd v Ultra-Tune Pty. Ltd,^[9] the irregularity denying jurisdiction was neither void or so irregular as to be beyond the  savings  provisions of the then District Court Rules. Hence, in that case, it was open to the court, on application, to amend the plaint or accept an undertaking from the plaintiff to amend the plaint so as to demonstrate jurisdiction. Had the present substantive application proceeded, a similar result to an amendment to pleading would have been available to the applicant provided an affidavit along the lines I have outlined above in paragraphs (15) & (16) had been filed or undertaken to be filed .In that event I consider the interests of justice would have been served by my exercising my discretion under Part 3 of the UCPR allowing an amendment to the application and proceeding to hear the application. In that event I would have been inclined not to make an order for costs and that is still my inclination in the events that have happened.

22. [22]
    The Application is struck out for want of jurisdiction with no order as to costs.