Court and Judges - Courts - Remitting and transferring actions - Summary judgment in District Court for damages to be assessed - Damages particularised in a sum greatly exceeding jurisdiction - Power to remit to Supreme Court - Discretion

Respondent (Defendant) : Mr C J L Pullin QC & Mr S Penglis

Ex parte Sadler; Re Cemac Modular Constructions Pty Ltd [1973] 1 NSWLR 263

Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; (1993) 182 CLR 26

Karageorge v Deputy Commissioner of Taxation [1999] NSWSC 1009

Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622

Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634

1 ANDERSON J: This is an appeal by leave from an order of a District Court Judge dismissing an application under s 77 of the District Court Act to remit an action to this Court. It is an action for damages for breach of contract for the supply of tomatoes. The appellant was the supplier. In the action commenced in the District Court, the appellant claimed that the contract was breached in August 1998 by the refusal of the respondent to accept any further deliveries in accordance with its obligation to do so under the supply contract.

2 There was a claim for unliquidated damages. In the end, liability was not contested, and on 25 March 1999, a judgment was entered in favour of the appellant under O 14, that is, summary judgment for damages to be assessed.

3 In the subsequent course of proceedings, the appellant particularised its damages in a manner which revealed that the claim exceeded the jurisdictional limits prescribed by the District Court Act. I do not need to go into the particular sections, but the effect of s 50(1) of the District Court Act is accepted as being that in a case such as this, the limits upon the District Court jurisdiction is the sum of $250,000.

4 The question is whether the Court - that is the District Court - had the power at that stage - that is after judgment on liability - to make an order remitting the action to this Court so that the assessment of damages could be carried on in this Court, and if it did, whether, in the proper exercise of discretion, the Court should have made an order remitting the action to this Court.

5 Concerning the question of power to remit, that depends on a proper construction of s 77 of the District Court Act. I can see no reason to place any narrow construction on that section. There are no policy reasons to do so, in my opinion. It is in the interests of the efficient disposal of actions that there should be a wide power to remit to avoid the worst consequences of a wrong choice of jurisdiction.

6 There are, in my opinion, no textual reasons to place any narrow construction on the section. There is nothing in the section itself which to my eye provides a foothold for the contention that the power to remit is limited to cases which have not gone to the stage that this case has gone. In my opinion, the Court had the power to remit, notwithstanding that interlocutory judgment on the issue of liability had been entered. The question is whether the order should have been refused on discretionary grounds. It seems to me, on a reading of his Honour's reasons, that in the

end it was on discretionary grounds that he refused to make the order to remit.

7 I cannot see that there are any sufficient discretionary grounds. I do not think there are any discretionary grounds which should lead to the making of an order that has the effect of shutting the appellant-plaintiff out of its claim. In this case, it is a claim in excess of $1,000,000.

8 I am not persuaded that there is any prejudice to the respondent in the way that the proceedings have been conducted thus far. I do not accept that the time and cost considerations referred to by Mr Pullin QC in argument give rise to prejudice sufficient to influence discretion.

9 Nor do I accept that the effect of a judgment in this court for an amount in excess of the District Court jurisdiction would arguably vitiate the judgment for liability that has been obtained below necessitating further complicated proceedings. In my opinion the effect of s 78 of the Act is that the proceedings, once remitted to this Court, are taken to have been originally brought in this Court thus saving any curial actions below which may otherwise be taken to have been executed beyond jurisdiction.

10 I do not accept that the respondent has been prejudiced by any representation by the appellant that it would not prosecute its claim beyond $250,000. No such representation was actually made. Nor do I consider that the starting of a damages action in the District Court, even prosecuting it to the interlocutory judgment stage on the issue of liability, implies such a representation.

11 In my opinion there was power to remit and the proper exercise of the discretion required that that order be made. For my part, I would make the orders sought in the application which is now before this Court.

12 McKECHNIE J: I agree with the presiding Judge, and would add just this. Section 77 was discussed in Trimble v Piggott (1995) 14 WAR 329, and the learned District Court Judge referred to that case. In the course of the judgment, the Chief Justice considered that the power under s 77 might be exercised by a District Court Judge on his or her own motion.

"The procedures contemplated are administratively simple and are designed to avoid any unnecessary costs involved in the remitting or transferring of actions between the respective courts."

"It is quite clear that the scheme of the legislation is to avoid proceedings being brought on and dismissed in one court and then having to be brought again in another court with the consequent costs involved by following that procedure."

15 It is the sort of action referred to by the Chief Justice which the respondent was driven to suggest the appellant here would have to undergo because of the particular circumstances.

16 The action remains on foot notwithstanding that there has been a judgment. The whole action is transferred to this court in a remitter. There remains to be heard and determined the question of the assessment of damages. Although the learned Judge based his decision in part on the fact that the action had been heard and determined in the District Court, that is, with all respect, a somewhat artificial approach. There has been no real hearing. An interlocutory judgment has been entered. There can be no final judgment until damages have been assessed, and this cannot take place until there has been a hearing and determination.

17 From the affidavit of the plaintiff's solicitor, which was not disputed, quantification of the damages was not possible until 9 March 2000. The plaintiff has not elected to abide the jurisdiction of the District Court. It has made a jurisdictional decision based on available information. If it has made an error, it should not be precluded from recovering a proper amount of damages on some technical basis. There is no demonstrated prejudice to the respondent if the remitter were to be allowed.

18 The purpose of s 77 was to provide a quick and easy mechanism to transfer cases, not to provide a technical and potentially unjust hurdle in the way of a plaintiff proving its loss. It is not suggested in this case that the plaintiff has made a mistake but even if it had, that would not necessarily provide a reason to refuse the remitter. I join in allowing the appeal and the orders sought.

19 ROBERTS-SMITH J: In my view, the decision by the learned District Court Judge not to remit was one that was an unreasonable exercise of his discretion in all the circumstances, and I would conclude that the exercise of his Honour's discretion in that way miscarried. I agree with the reasons and conclusions expressed by Anderson J and I would make the same orders.