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1. Vibe Ing Pty Ltd (Vibe) operates a real estate business and employed Mr Ryan Hedley as a real estate agent. Mr Hedley resigned after working for about a year and thereafter began working for another real estate business. He now claims Vibe owes him unpaid commissions and superannuation under his employment contract. In its defence, Vibe denies owing Mr Hedley any debt and counterclaims he has breached a restraint of trade clause in the employment contract after his employed ceased. Vibe says he procured and used Vibe’s confidential information to persuade property owners to transfer management of their properties from Vibe to Mr Hedley’s new employer.

2. Proceedings were commenced in the Magistrates Court. Those proceedings have reached a stage where the parties are preparing for the listing of a hearing. No hearing date has yet been allocated in the Magistrates Court. As to an estimated time for hearing, Vibe suggest a hearing estimate of two days, whereas Mr Hedley considers perhaps three–four days will be required.

3. Vibe makes application in this court for the following orders: 1. That proceeding number CS 122 of 2025 be removed into the [S]upreme [C]ourt; 2. That the defendant be given leave to amend defence and counterclaim in the manner outlined in the draft amended defence and counterclaim attached to this application and marked ‘A’; 3. Any other orders that the Court considers appropriate.

4. Affidavits of Nigel John Gabbedy, solicitor, affirmed on 11 August 2026 and 15 September 2026 are read in support of the application. Mr Hedley opposes both the transfer of the proceedings to the Supreme Court and the amendment to the defence and counterclaim.

5. I initially considered it appropriate to deal with the application for transfer first as there was a prospect the determination of that matter would render the balance of the application nugatory. However, the submissions made by the parties relating to transfer included some concerning the proposed amended pleading and as a consequence it is necessary to consider the two applications together.

The circumstances in which an order for transfer will be made

6. Section 270 of the Magistrates Court Act 1930 (ACT) provides: 270 Removal of proceedings into Supreme Court On the application of a party to a proceeding in the Magistrates Court, the Supreme Court may order that the proceeding be removed into the Supreme Court on the conditions about costs, security for the amount claimed or costs, or otherwise, that the Supreme Court considers just.

7. Rule 1432 of the Court Procedures Rules 2006 (ACT) is in very similar terms. Neither the section nor the rule imposes any criteria, and the decision whether or not to transfer proceedings is an exercise of discretion, with due regard to interests of justice considerations applicable in the circumstances of the case. Relevant considerations may include the likely quantum of the claim, the level of complexity, if there are issues of public importance which are to be ventilated and the availability of court resources to deal with the matter consistent with the objective of quick, inexpensive and efficient disposal of civil proceedings. In a claim for damages, a paramount consideration will often be the likelihood of the damages sum exceeding the monetary jurisdictional limit of the lower court.

8. In Ryan v Cheqrouni [2023] ACTSC 329 at [22], Mossop J quoted with approval the often cited passage from Ex parte Delponte; Re Thiess Bros Pty Ltd [1965] NSWR 1468 at 1469 (Asprey J): I think that if a person has, as the plaintiff alleges he has, a cause of action based upon reasonable grounds which would entitle him to be compensated beyond the statutory figure permitted in the District Court, then he should be, in ordinary circumstances, permitted to have that cause of action adjudicated upon by the appropriate tribunal. If, however, he is guilty of some conduct, such as delay or otherwise, which would prejudice the defendant's chance of success in such an action, then, generally speaking, the plaintiff ought not to be entitled to have the discretion under s 47 exercised in his favour.

9. See also Yi Qing Jin v Yang Ai [2011] ACTSC 70 at [86]-[92] (Refshauge J).

10. In personal injury damages claims in particular, it is well recognised that a party should be entitled to have their claim determined in the tribunal appropriate to the quantum of damages sought. It seems to me the same principles apply in a commercial claim where the damages sought constitute an unliquidated sum which is anticipated to exceed the jurisdictional limit of the lower court.

Should transfer be permitted in this case?

11. Vibe raises two matters in support of its application: (a) First, it considers the likely quantum of its counterclaim will exceed $250,000. That was its view when the counterclaim was initially filed, although it was then prepared to limit recoverable damages and compensation to a sum not exceeding $250,000, being the jurisdictional limit of the Magistrates Court. It is no longer willing to concede such a limitation and for that reason seeks the transfer of the proceedings. It relies upon the proposed amended defence and counterclaim as providing a basis for damages in excess of the jurisdictional limit. (b) Secondly, it anticipates filing related proceedings against third parties, which will be commenced in the Supreme Court and ought reasonably be heard together with this action. It asserts draft proceedings have been prepared but concedes no documentation has yet been filed.

12. Importantly, for reasons I will set out below, Vibe does not press the complexity of the proceedings as a basis for their transfer.

13. Mr Hedley opposes the transfer of proceedings on a number of bases: (a) The quantum of the primary claim will not exceed the jurisdiction of the Magistrates Court. (b) The evidence relied upon by Vibe on the counterclaim does not establish as a matter of likelihood that damages on a successful counterclaim will exceed the jurisdictional limit of the Magistrates Court. (c) The Magistrates Court proceedings are well advanced, affidavit evidence has been filed and it is anticipated the parties will be in a position to seek a hearing date in the near future. (d) The absence of filed proceedings in the prospective related claims should result in the court ignoring the prospect of such claims as a relevant consideration. (e) The inevitable delay from transfer of the proceedings, particularly in circumstances where the proposed amended defence and counterclaim is permitted, will further delay the prosecution of the plaintiff’s primary claim, resulting in some prejudice to him where that claim is founded in unpaid employment entitlements.

14. For reasons I will explain below, I consider it appropriate to give leave to amend the defence and counterclaim in the form of the proposed amended defence and counterclaim annexed to the application in proceeding. I have proceeded to assess the application for transfer on the basis of the proposed amended pleading.

15. There is a real likelihood dealing with the amended defence and counterclaim will lead to some additional preparatory work for each of the parties. Having found it appropriate to grant leave for the amendment, that is a burden which would have applied if the proceedings were to remain in the Magistrates Court. I therefore consider it to be a neutral factor, as is the prospect of consequent delay in the allocation of a hearing date as that would apply in either court. I accept, as Mr Hedley submits, it is inappropriate to give any weight to the possibility of related proceedings being brought in the Supreme Court when those proceedings are yet to be commenced and there can be no certainty if and when they will be. There is no suggestion of any relevant public interest considerations, or of the complexity of the matter necessitating its transfer. The nub of the application is the claim by Vibe regarding the prospect of damages on the counterclaim exceeding the jurisdictional limit of the Magistrates Court. I note their assessment of the prospective quantum of the counterclaim has not changed, just their willingness to concede the cap on the lower court’s jurisdiction. Mr Hedley submits the evidence before me is insufficient to quantify with any real accuracy the prospective value of Vibe’s claim. In a case such as this, founded significantly in a claim for unliquidated damages, where the damages are continuing to accrue, it is very difficult to conduct any reasonable assessment of the prospective quantum of the claim without first hearing the evidence in the case.

16. I also consider the approach to these applications is to some extent altered by the changes introduced with the introduction of the Courts Legislation Amendment Act 2011 (ACT). That amendment saw a substantial increase in the jurisdictional limit of the Magistrates Court from $50,000-$250,000 and the Court Procedures Amendment Rules 2011 (No 4) (ACT) saw the introduction of the costs provision comprised in r 1725 of the Rules. If Vibe is successful in its counterclaim but recovers less on that claim than $175,000, the combined effect of rr 1723 and 1725 would be to limit the recovery of costs on the counterclaim to the relevant level prescribed by r 1725. In circumstances where the recovery is between $50,000-$100,000, the costs restriction then applying under r 1725 would be significant, compared with the recovery of costs had the proceedings remained in the Magistrates Court. In that court, a damages award above $50,000 would see costs recovered at 100% of the Supreme Court scale. In short, the imposition of a significant cost restriction on claims brought in the Supreme Court but more appropriately litigated in the Magistrates Court to my mind lessens the warrant for close scrutiny of the evidence underpinning the asserted prospective entitlement to damages in excess of the lower court’s jurisdiction.

17. In the context of proceedings transferred as a consequence of the prospective quantum of a counterclaim, but in circumstances where the damages sought by the plaintiff in the primary claim are unlikely to exceed the jurisdiction of the lower court, it appears no express provision is made in the Rules. Where the plaintiff has, over opposition, had to conduct his proceedings in the Supreme Court and ultimately recovers damages within the jurisdiction of the Magistrates Court, he would be very well placed to seek an alternative costs order pursuant to r 1725(3) of the Rules. As a matter of fairness, where the plaintiff has resisted the transfer application on the basis that the jurisdiction of the Magistrates Court will suffice to determine the matter, it is appropriate he not be penalised where the outcome in terms of quantum is just as he predicts. That is particularly so when no issue of complexity underpinning the need for transfer is raised against him.

Why is leave to amend the defence and counterclaim appropriate?

18. Vibe admits the existence of an employment contract between it and Mr Hedley but denies the contract comprised all of the terms alleged. By way of counterclaim, Vibe relies upon various clauses in the employment contract, including those relating to the employee’s obligation to act in the employer’s best interests, the obligation not to act in a manner prejudicial to the goodwill or commercial reputation of the employer, the duty of confidentiality and the obligation to avoid conflicts of interest which may impair his capacity to perform his duties or damage the business of the employer. Vibe asserts Mr Hedley acted in a manner contrary to those obligations and, as a consequence, breached his employment contract creating an entitlement to damages in an unliquidated sum for breach of contract.

19. The proposed amendments to the counterclaim arise from the same factual substratum but extend the basis for the damages claim to breaches of the fiduciary duties owed to the employer by Mr Hedley as its employee. The existence of such duties arises as a consequence of the relationship of employment. I am satisfied that part of the proposed amended pleading comprising clauses 7A–7C inclusive involves no change of substance to the pleaded claim. Clauses 10A–10C are to similar effect. Although the language of conspiracy is used, there is no suggestion in the proposed form of pleading to any illegality or fraud such as to require more detailed particularisation in accordance with the requirements of r 407 of the Rules.

20. I accept the proposed amendment has come relatively late in the day in the context of the preparation already undertaken in the Magistrates Court proceedings. However, the amendment also provides greater clarity of the nature of the claim sought to be made by Vibe, and in that sense is likely to be of assistance to the court. As the allegations arise out of the same facts, there is unlikely to be a significant burden placed on Mr Hedley in terms of further preparation. Consistent with the broad discretion to allow an amendment to pleading at any stage of proceedings pursuant to r 502 of the Rules and noting the prospect that, if anything, the proposed amendment may assist in confining or clarifying issues of disputation between the parties, I am satisfied it is appropriate in this matter to permit the proposed amendment.

21. As Vibe seek an indulgence in bringing its application at this time, it is appropriate it bears any costs thrown away as a consequence. Orders

22. I make the following orders: (1) Pursuant to r 1432 of the Court Procedures Rules 2006 (ACT), proceeding number CS 122 of 2025 is transferred to the Supreme Court. (2) Pursuant to r 502 of the Court Procedures Rules 2006 (ACT), the defendant has leave to amend its defence and counterclaim in the form of the draft amended defence and counterclaim attached to the application in proceeding lodged on 11 August 2026. (3) The defendant is to pay the plaintiff’s costs of and incidental to the application in proceeding lodged on 11 August 2026 and any costs thrown away by the plaintiff as a consequence of orders (1) and (2) above.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: