Before the Court in this matter is an issue relating to the jurisdiction of the Court. The other issues have in substance been agreed between the parties. The matter was fixed for hearing today for one day. The plaintiff has sought leave, and will be granted leave, to discontinue the Statement of Claim proceedings.
That leaves the Cross-Claim between the parties which is described as a "counter-claim" and is in paragraphs 16 to 19 at the back of the Amended Defence filed 19 March 2021 ("the Cross-Claim").
Mr Foran of counsel, who appears for the plaintiff, submits that there is a doubt as to the jurisdiction of the Court as to the Cross-Claim. He submits that the appropriate order to be made is for the Court to transfer the matter to the Supreme Court under s 144 of the Civil Procedure Act 2005 (NSW). Mr Ryder, who appears for the defendant, is not in a position fully to respond to the authorities raised by Mr Foran but notes that s 144 refers to an obligation to transfer where the District Court "may" lack jurisdiction. The Cross-Claim is, of course, a separate proceedings and survives the discontinuance or dismissal of the main proceedings.
An analysis needs to be undertaken of paragraphs 16 to 19 of the Cross-Claim. There is in the proceedings an issue as to the ownership of a pedigree dog called "Dante". I note that these proceedings have been hard fought and it is proposed that, if the matter is transferred, the Supreme Court will determine the ownership of the dog and related relief. Looking at paragraph 18 of the Cross-Claim, the torts of detinue and wrongful interference with goods are pleaded. Those are common law torts and this Court would usually have jurisdiction in relation to them.
However, what is sought in paragraph 19 of the Cross-Claim is a declaration as to the commission of the torts. Paragraph 19.2 of the Cross-Claim seeks a mandatory injunction, in effect, that the plaintiff return the dog to the defendant. The normal order is that the dog be made available to the defendant if an injunction was granted. Paragraphs 19.3 to 19.5 of the Cross-Claim require orders against persons who are not party to the proceedings and it seems difficult to see how those orders could be sought. Paragraph 19.6 seeks other mandatory injunctions. Paragraph 19.6(iv) appears to seek an account of profits. The issue, therefore, is whether the Court has jurisdiction to determine those matters. It is clear that a declaration and an account (in these circumstances) are equitable remedies. The injunctions sought are also equitable remedies, although based in statute.
The terms "action" and "proceedings" are defined in s 4 of the District Court Act 1973 (NSW) as follows:
"action means action in the Court, but does not include any proceedings under Division 8 of Part 3 or under Part 4."
"proceedings -
(a) where occurring in a provision of Part 3 and in subsections (3) and (5), means civil proceedings,
(b) where occurring in a provision of Part 4, means criminal proceedings, and
(c) where occurring in any other provision of this Act, shall be construed according to the context in which the expression occurs."
Sections 9(1), 44(1), 46 and 134(1) of the District Court Act are as follows:
"9 Jurisdiction of the Court generally
(1) The Court shall have a civil jurisdiction, consisting of -
(a) its jurisdiction conferred by Part 3, and
(b) the jurisdiction conferred by or under any other Act or law on the Court, not being its jurisdiction referred to in subsection (2)."
"44 Actions
(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions -
(a) any action of a kind -
(i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and
(ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,
other than an action referred to in paragraph (d) or (e),
(b) (Repealed)
(c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will,
(c1) subject to paragraph (c), any action arising out of a commercial transaction in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,
(d) any motor accident claim, irrespective of the amount claimed,
(d1) any work injury damages claim, irrespective of the amount claimed,
(d2) any substituted proceedings within the meaning of Part 3A of the Civil and Administrative Tribunal Act 2013, so long as the amount (if any) claimed does not exceed the Court's jurisdictional limit,
(d3) without limiting paragraphs (d) and (d1), any substituted proceedings within the meaning of Division 3.2 of the Personal Injury Commission Act 2020 irrespective of the amount claimed,
(e) any proceedings transferred to the Court under section 146 (1) of the Civil Procedure Act 2005, irrespective of the amount (if any) claimed in those proceedings."
"46 Ancillary equitable relief: injunctions
(1) Without affecting the generality of Division 8, the Court shall, in any action, have power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceedings in the Supreme Court.
(2) In relation to the power of the Court to grant an injunction under this section -
(a) the Court and the Judges shall, in addition to the powers and authority otherwise conferred on it and them, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances,
(b) the appropriate officer of the Court shall, in addition to the duties otherwise imposed on the officer, discharge -
(i) any duty which an officer of the Supreme Court would be required under the practice of the Supreme Court to discharge in the like circumstances, and
(ii) any duty imposed on the officer by the rules or by any order of the Court,
(c) the practice and procedure of the Court shall, so far as practicable and subject to this Act and the rules, be the same as the practice and procedure of the Supreme Court applicable in the like circumstances, and
(d) without affecting the generality of the foregoing provisions of this section, the powers, authority and duty conferred by paragraphs (a) and (b), and the practice and procedure of the Court referred to in paragraph (c) shall, subject to the rules, extend to the enforcement of any order of the Court made in connection with proceedings for the grant of the injunction.
(3) Without affecting the generality of any other provision of this Act authorising the making of rules, the rules may make provision for or with respect to -
(a) the procedure to be followed with respect to the granting and enforcing of an injunction under this section, and
(b) any other matter necessary or convenient for giving effect to this section."
"134 Jurisdiction in equity proceedings
(1) The Court shall have the same jurisdiction as the Supreme Court, and may exercise all the powers and authority of the Supreme Court, in proceedings for -
(a) the foreclosure or redemption of a mortgage or the enforcing of any charge or lien where the amount owing in respect of the mortgage, charge or lien does not exceed $20,000, as determined by the Court,
(b) the specific performance, rectification, delivery up or cancellation of any agreement for -
(i) the sale or purchase of any property at a price not exceeding $20,000, or
(ii) the lease of any property the value of which does not exceed $20,000, as determined by the Court,
(c) an order under section 3 of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (as in force immediately before that Act was amended by the Succession Amendment (Intestacy) Act 2009) or a family provision order under Chapter 3 of the Succession Act 2006,
(d) relief against fraud or mistake where the damage sustained or the estate or fund in respect of which relief is sought does not exceed $20,000 in amount or value, as determined by the Court,
(e) the execution of a trust or a declaration that a trust subsists, where the estate or fund subject or alleged to be subject to the trust does not exceed $20,000 in amount or value, as determined by the Court, or
(f) the administration of the estate of a deceased person, where the estate does not exceed $20,000 in amount or value, as determined by the Court, or
(g) any application under the Property (Relationships) Act 1984, or
(h) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which any other paragraph of this subsection applies), in an amount not exceeding the Court's jurisdictional limit."
The question of the Court's jurisdiction in relation to equitable remedies has been considered in a number of appellate authorities. In particular, see the comments of Leeming JA in Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 at [79]‑[105]. His Honour makes the point in his reasons that the Court does have a jurisdiction in some equitable matters and, in particular, refers in paragraph 91 to various sources of power.
Section 144 of the Civil Procedure Act is also to be borne in mind. This was considered in Mahommed v Unicomb [2017] NSWCA 65 by the Court of Appeal. The question to be determined is whether the Court has a doubt that it has jurisdiction to determine the matters in the Cross-Claim. In Mahommed v Unicomb the Court held at paragraphs 25 and 38 and following that where there is a doubt or where it is clear that it does not have equitable jurisdiction under 134, the Court must transfer the matter to the Supreme Court.
In relation to paragraph 18 of the Cross-Claim, the Court clearly has power and jurisdiction in relation to the torts of detinue and wrongful interference with goods. In relation to paragraph 19, the question is whether the Court has the power to make a declaration when no action for damages is brought.
In Kolavo v Pitsikas [2003] NSWCA 59, which was referred to in Mahommed v Unicomb at paragraph 45, the Court of Appeal held that there was a limited basis for this Court to give declaratory relief where it is supportive of an "action". The precise boundaries of the jurisdiction of the Court as to declaratory matters was not determined. His Honour Leeming JA similarly did not consider this issue in Great Northern Developments, above. In my view, there is at least some doubt about the Court's powers to make the declaration under paragraph 19 of the Cross-Claim, although on balance, if I had to decide it, it would appear to me to fall within the principle in Kolavo v Pitsikas.
In relation to the injunctive order sought in paragraph 19.2, it would seem to me that the Court has power to make that order under s 46 of the District Court Act being the power to give ancillary equitable relief in the form of injunctions where there is an action. The Court has no power in relation to paragraphs 19.3 to 19.5 but neither would the Supreme Court make those orders where those persons are not party to the proceedings. In relation to paragraph 19.6(iv), it appears to be seeking an account which is generally an equitable remedy. In my view, this Court does not have jurisdiction to grant that relief. Looking at the matter as a whole, in my view there is at least a doubt as to whether the Court has the equitable jurisdiction under ss 46 and 134 of the District Court Act to make the orders sought. See also the comments of Gibson DCJ in Edwards v Gillespie [2020] NSWDC 475 at [12]-[20] and [27]-[32] where her Honour also considered ownership of a dog.
In those circumstances, the Court is obliged to transfer the matter under s 144 of the Civil Procedure Act to the Supreme Court.
The court makes the following orders:
In relation to the Notice of Motion filed 24 November 2021:
1. Orders in accordance with paragraphs 1 to 8 of the consent orders signed by the legal representatives for the parties on 25 November 2021 as amended and as initialled by Dicker DCJ dated 25 November 2021 and placed with the papers.
2. The trial listed for hearing for 25 November 2021 is vacated.
Note: The trial is vacated due to issues relating to the District Court's jurisdiction. The matter has been transferred to the Supreme Court.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 December 2021