Liristis v White

Local Court Proceedings

1. Despite Mr Liristis' affidavit totalling 32 pages (inclusive of annexures), nowhere in the materials put before me are the pleadings which form the basis of the Local Court Proceedings. Whilst the affidavit makes reference to an "Unliquidated Statement of Claim", no copy of any such document has been provided.
2. Over the objection of Mr Liristis, Mr Sukkar handed up two judgments of Newlinds SC DCJ and Abadee DCJ in recent District Court proceedings involving the same parties, to which I briefly refer below. Those judgments were collectively marked as MFI-1.
3. Because the contents of Mr Liristis' affidavit frequently delved into what were clearly submissions in support of the transfer application rather than evidence, I have very little evidence of the factual background to the dispute between the parties beyond what I have been told by Mr Liristis and Mr Sukkar from the Bar table and what appears in the judgments of Newlinds SC DCJ and Abadee DCJ. However, for reasons which I will come to, Mr Liristis did not wish me to have regard to those judgments in determining this application. With that in mind, the following factual summary is based on what I have been able to glean from Mr Liristis' affidavit and what I was told by the parties on the hearing.
4. The Local Court Proceedings concern a motor vehicle accident involving Mr Liristis and the defendant. It appears that Mr Liristis commenced the Local Court Proceedings in late 2023 by filing the "Unliquidated Statement of Claim". Whilst no details of that claim are before me, I was told that Mr Liristis seeks damages from the defendant for property damage in respect of his vehicle. Mr Liristis made a point of stating that he is not making any claim for personal injury in the Local Court Proceedings: T 6.25-.42. (Given the nature of the claim being propounded in the Local Court, it is unclear why Mr Liristis made the transfer application in the Equity Division of this Court, as opposed to the Common Law Division.)
5. Although I have not seen the defendant's defence in the Local Court Proceedings, there is some indication that he has admitted liability for the collision: TL Affidavit at [24]-[26]; T 22.39. Thus, the ongoing dispute appears to relate to the question of quantum of damages.
6. The Local Court Proceedings were listed for hearing in April of this year and are due to take place over 27 and 28 February 2025. Mr Liristis has another (different) claim in the Small Claims Division of the Local Court, which was subsequently also listed on 27 February 2025. Mr Liristis indicated that the proceedings number for that claim is 2022/00288154, and that it was commenced in 2022.
7. Mr Liristis made an adjournment application in respect of the 2023 claim (being the claim which he now seeks to have transferred to this Court). On 21 November 2024, the adjournment application was heard by a magistrate of the Local Court [1] and refused.
8. I was informed by Mr Sukkar that the magistrate's reasons for refusing to adjourn (or rather vacate) the hearing were twofold: first, the 2023 claim "came first in time"; and second, the 2022 claim was only listed for a very short time on 27 February 2025, and the magistrate was satisfied in those circumstances that both could proceed on the same day: T 16.32-.39. Mr Liristis said that the first reason "makes no sense" because the 2022 claim was filed before the 2023 claim: T 17.1-.3. However, I did not understand Mr Sukkar's summary of the magistrate's reason to refer to the time of filing, as opposed to the fact that the 2023 claim had been set down for hearing before the 2022 claim had.
9. Mr Liristis also indicated that the 2022 claim was listed to start at 11:00 am on 27 February 2025, and that there would be a "disqualification" application that will need to be heard, which may take an hour or two: T 17.5-.8. The nature and basis of any such application was not made clear to me. In any case, Mr Liristis asserted that, by reason of that application, the 2022 claim would not finish on 27 February 2025 and would need to go over to the following day, eating into the time allocated to the hearing of the 2023 claim: T 17.8-.10.
10. Mr Liristis was evidently aggrieved by the refusal of his adjournment application, indicating that he believed it to be a denial of procedural fairness: T 15.46-.48. However, when I enquired as to possible avenues of appeal of the refusal, he stated that he would need to seek leave (as it was an interlocutory application) and that he has "run out of time because of Christmas": T 8.8-.14.

District Court proceedings

1. Mr Liristis emphatically maintained that he has never filed any summons in the District Court in relation to the subject matter of the Local Court Proceedings: see T 3.1-.47, 5.20-.21, 12.40-.41, 13.4, 15.2.
2. Despite that, there was placed before me a revised version of an ex tempore judgment of Newlinds SC DCJ from 24 October 2024 (in District Court proceedings 2024/286433) which summarily dismissed a statement of claim and summons which had purportedly been filed in the District Court by Mr Liristis sometime in July or August 2024 and on 18 October 2024, respectively. Relevantly, the summons had sought to have the Local Court Proceedings transferred to the District Court.
3. Further, on 26 November 2024, Abadee DCJ granted Mr Liristis leave to discontinue a separate summons which also appeared to have been filed by him on 29 October 2024 in the District Court (in proceedings 2024/00400930). By that summons, Mr Liristis had again sought to have the Local Court Proceedings transferred to the District Court (pursuant to s 140(2) of the CPA): see Liristis v White [2024] NSWDC 557.
4. Mr Liristis initially told me both of those judgments are "under appeal" (T 3.44) and that an "appeal has been lodged now with the Court of Appeal on both of those judgments" (T 12.44-.46). However, he then told me that "two appeals… are going to be filed, I think it's tomorrow": T 14.34-.35 (my emphasis). No evidence was before me of any appeal being filed in respect of either judgment.
5. I should record that Mr Liristis made various comments in passing which alluded to some kind of investigation being undertaken by the Independent Commission Against Corruption and/or the Judicial Commission, or that concerns had been expressed by those bodies, in relation to the two judgments. Mr Liristis provided no evidence at all of any investigation by, or even communications with, any persons associated with either of those bodies. In the circumstances, I have no reason to doubt the carefully reasoned findings of either Newlinds SC DCJ or Abadee DCJ.

Transfer application

1. Pursuant to s 140(1) of the CPA, this Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings be transferred to this Court. Relevantly, proceedings in the Local Court are not to be transferred to a higher court under s 140 unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court: s 140(4) CPA.
2. The power to transfer the Local Court Proceedings under s 140(1) of the CPA is discretionary and is to be exercised judicially, having regard to the particular circumstances of the case and the guiding case management principles in ss 56 to 60 of the CPA: see e.g. James v Commonwealth Bank of Australia [2016] NSWSC 1321 at [24] per Darke J; Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164 (Restaino) at [7] per Beech-Jones CJ at CL (as his Honour then was). The principles which inform that discretionary decision were helpfully summarised by McNaughton J in Riaz v Technical and Further Education Commission [2024] NSWSC 474 at [44] as follows: (1) A transfer from the Local Court to the Supreme Court is precluded unless the Supreme Court is satisfied there is sufficient reason for hearing the proceedings in the higher court. (2) The discretion is to be exercised having regard to the circumstances of the case, and so that justice is best served between the parties. It is necessary to consider all relevant facts and circumstances. (3) The applicant for transfer bears the onus of satisfying the Court that there is "sufficient cause", "sound ground' or "good reason" so that justice is best served between the parties. Such matters typically include a risk that a jurisdictional limit affecting the lower court would be exceeded; where there are complex and important issues; and where the proceedings involved allegations of significant notoriety or public importance. (4) The test should be considered in accordance with s 56 of the CPA, that is that the overriding purpose of the CPA and rules of the court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (5) "Sufficient reason" permits a wide range of considerations, including impressionistic matters (such as the likely award of damages) and an evaluation of the matters in issue. (6) Absence of jurisdiction in the lower court provides a reason for transfer. (7) The possibility of inconsistent findings between courts can justify transfer. (8) The possibility of findings by lower courts on the proper interpretation of significant and widely used provisions can warrant transfer. See also TH Drake & Associates Pty Ltd v Safaei [2022] NSWSC 1008 at [17] per Walton J and the authorities cited therein.

Submissions

1. Mr Liristis' primary submission in support of his transfer application was that the relief he seeks in the Local Court Proceedings now exceeds the jurisdictional limit of the Local Court, being $100,000 in the General Division: s 29(1)(a) Local Court Act 2007 (NSW); see e.g. T 11.19-.22. On the hearing, he initially told me that the matter "already has just passed the $254,000 mark" and that "[b]y the time it goes to a hearing, it'll probably be over 350,000": T 1.27-.28, 4.13. It is not evident to me how those particular figures were arrived at, but they appeared to be on the basis that Mr Liristis is "suffering damages on a daily basis": T 11.41-.42. When I later sought to clarify the amount actually being claimed, Mr Liristis then stated that "we can't cap it": T 22.29-.30.
2. As best I can gauge, and without having the "Unliquidated Statement of Claim" or any other pleading before me, I understand that Mr Liristis currently seeks to characterise his damages as consisting of, inter alia, ongoing hire costs for a replacement vehicle, which he appears to use in the business of the second plaintiff, on the basis set out by the Court of Appeal in Lee v Strelnicks; Souaid v Nahas; Cassim v Nguyen; Rixon v Arsalan [2020] NSWCA 115; (2020) 92 MVR 366 (Lee). In that regard, Mr Liristis wished to draw my attention particularly to [52] of his affidavit, where he provided the following table said to detail the costs of the hire car: Description From To Days Per Day Total Vehicle Hire 27 October 2023 2 February 2024 100 $90.00 $9,000.00 Low Excess Cap 27 October 2023 2 February 2024 100 $20.00 $2,000.00 Vehicle Hire 3 February 2024 27 October 2024 268 $135.00 $36,180.00 Low Excess Cap 3 February 2024 27 October 2024 268 $25.00 $6,700.00 Vehicle Hire 28 October 2024 28 November 2024 31 $225.00 $6,975.00 Low Excess Cap 28 October 2024 28 November 2024 31 $30.00 $930.00 Vehicle Hire 29 November 2024 28 February 2024 92 $400.00 $36,800.00 Low Excess Cap 29 November 2024 28 February 2024 92 $60.00 $5,520.00 $104,105.00

I assume that the references to 28 February 2024 in the second and third last rows of the table were intended to be references to 28 February 2025.

1. Mr Liristis did not identify the source or basis for any of the figures set out in the above table. No invoices or other underlying documents justifying those figures were put before me. However, some of those figures were cited in previous correspondence with the defendant's solicitors on behalf of Mr Liristis, which he annexed to his affidavit.
2. Mr Liristis further sought to draw my attention to another table at [53] of his affidavit. I will not reproduce the table in these reasons. Its precise purpose was unclear. In essence, Mr Liristis appeared to make side-by-side comparisons between the costs of the Local Court Proceedings (both incurred and forecasted) and certain forms of "damages" in two circumstances: first, where Mr Liristis' notice of motion to "end the proceedings" (it appears pursuant to r 17.7 of the UCPR) in February 2024 were granted, rather than being objected to by the defendant; and second, where the proceedings continue to the hearing on 27 and 28 February 2025. No underlying documents were provided to support the cost figures set out in the table. In respect of the forecasted costs, those figures simply appear to be Mr Liristis' own estimates.
3. Mr Liristis also appeared to express concern that the hearing time allocated for the proceedings over 27 and 28 February 2025 (during which time the 2022 claim will also be heard) will be insufficient. In his view, the 2023 claim was "a three to four day matter": T 1.46. His basis for making that assessment was unclear to me, particularly in circumstances where the defendant appears to have accepted liability. Mr Liristis asserted that he will be calling three to five witnesses and there are so far three experts who will give evidence and be cross-examined: TL Affidavit at [59(e)]. He did not identify those witnesses nor elaborate on what evidence any such witnesses would be giving. For his part, Mr Sukkar gave no indication as to what witnesses, if any, would be called or required for cross-examination.
4. Mr Liristis otherwise made several submissions based upon the observations of Basten AJ in Brown v IJM Group Pty Ltd trading as Cove Agency [2024] NSWSC 578 (Brown), in particular at [21]-[25], to demonstrate that there is sufficient reason to transfer the Local Court Proceedings to this Court. I attempt to summarise them as follows.
5. First, he submitted that, like the proceedings in Brown, the Local Court Proceedings had "serious and unusual features, of a kind of which the magistrate is most… unlikely to be familiar, and which would benefit from consideration by an experienced commercial law judge": T 11.26-.28; see Brown at [22], [24]. Relatedly, it was said that the issue of damages for hire car rental in the Local Court Proceedings were "complex" and should be determined in this Court: T 11.34-.35, 17.42-.43.
6. Secondly, Mr Liristis submitted that the plaintiffs "will most certainly appeal the orders of the Local Court", as it does not have jurisdiction to hear the plaintiffs' case (exceeding the jurisdictional limit of $100,000), and the case "will be seriously prejudiced" as the plaintiffs' "costs" (I infer damages) will be capped at $100,000, which will then cause the plaintiffs to be in debt: T 12.5-.10, referring to Brown at [24]. Given his expressed intention to appeal any decision of the Local Court, Mr Liristis submitted that he was attempting to reduce costs by having the Local Court Proceedings transferred and "dealt with once": T 13.50-14.3.
7. I also note that, in his affidavit, Mr Liristis asserts that the Local Court does not have jurisdiction to hear "Pain and Suffering Claims (Not in Relation with the Motor Accident and Not in relation to the Motor Accident Injuries Act 2017)": TL Affidavit at [6], see also the table at [53]. Such "claims" were not referred to by Mr Liristis on the hearing and I have no idea what their nature is asserted to be. In any case, if Mr Liristis is making such "claims", that is directly contrary to what he told me on the hearing, namely that he was only making a claim for property damage: T 6.42.
8. On behalf of the defendant, Mr Sukkar submitted that this application is an obvious case of forum shopping, and there is no evidence at all as to why the matter cannot be dealt with appropriately in the Local Court, or even the District Court: T 21.28-.30. He submitted that there is no evidence that this claim is over $100,000 or indeed over $1.25 million (being the jurisdictional limit of the District Court: s 44(1)(a) District Court Act 1973 (NSW)): T 21.31-.32.
9. Mr Liristis accepted that his claim in the Local Court Proceedings is within the jurisdictional limit of the District Court: T 5.49, 23.29-.30.

Determination

1. Mr Liristis bore the onus of satisfying the Court that there is sufficient reason for hearing the Local Court Proceedings in this Court. He has not discharged that onus.
2. Even with the figures which Mr Liristis has provided in the table extracted above, I have little clarity around what amount is actually being claimed in the Local Court Proceedings without the "Unliquidated Statement of Claim" or any other pleadings in the Local Court Proceedings before me. As I have noted above, my questioning of Mr Liristis on the hearing did not clarify the position. Without any underlying explanation as to precisely where those figures came from and how they relate to the pleaded claim in the Local Court Proceedings, I am inclined to give them little weight. In those circumstances, and having regard to the fact that the defendant maintains that the claim is within the jurisdictional limit of the Local Court, I am not satisfied on the materials before me that the jurisdictional limit of the Local Court would be exceeded.
3. As observed earlier, the discretion under s 140(1) of the CPA is to be exercised having regard to the guiding case management principles in ss 56 to 60 of the CPA. In such cases, there are often two significant factors: (a) the potential prejudice to the plaintiff from the refusal of the application; and (b) the potential prejudice to the defendant from the loss of an impending hearing date if the application were granted: Restaino at [7]-[8]. In respect of the first, in the circumstances I have outlined in the previous paragraph, I am not persuaded that Mr Liristis will necessarily suffer any prejudice from the refusal of his application, as I am not persuaded that he is likely to recover more than $100,000. In respect of the second, I am satisfied that the defendant will suffer prejudice if the application were granted, as it will mean the loss of an impending hearing date just over two months away. That hearing date has been set down since April of this year and the parties have had ample opportunity to prepare for it. Whilst it is uncertain when a hearing in this Court could proceed, in my estimation, it is unlikely that the parties would be able to get an appropriate hearing date until well into 2025.
4. As to the purported complexity of the Local Court Proceedings, I am not satisfied that the issues in Mr Liristis' claim are of such complexity or are of a nature unfamiliar to a Local Court magistrate such that the proceedings would benefit from being heard in this Court. Mr Liristis' submissions in this respect appeared to be based principally on the fact that the issue of recoverability of hire costs for a replacement vehicle had been the subject of decisions of the Court of Appeal (Lee) and the High Court (Arsalan v Rixon (2021) 274 CLR 606; [2021] HCA 40 (Arsalan)). That fact alone hardly demonstrates any inherent complexity in Mr Liristis' claim such that it should be removed from the Local Court and transferred to this Court. Indeed, in Arsalan, the Court expressly recognised at [1] that "[t]he question is one that has arisen many times in a variety of different circumstances in local courts across Australia".
5. Whilst Mr Liristis placed much emphasis upon Basten AJ's decision in Brown, the circumstances of this application are clearly distinguishable from those before his Honour. In Brown, the three factors identified by his Honour (at [22]-[24]) as supporting a transfer to the Equity Division were that: (a) the Local Court would be required to construe a deed which had "unusual features", of a kind with which a magistrate was most unlikely to be familiar, and which would benefit from consideration by an experienced commercial law judge; (b) the deed was the product of a mediation of proceedings which had been in the Equity Division; and (c) although the claim fell within the jurisdiction of the Local Court, the confined issues raised by the defence ought to have been determined expeditiously in accordance with Pt 6 of the CPA. In respect of the third factor, Basten AJ observed that, if the matter were to be left in the Local Court, there was at least a significant possibility that either party if unsuccessful might appeal the conclusions reached by the magistrate as to the proper construction of the deed: Brown at [24]. The possibility of an appeal to this Court militated against giving much weight to the fact that the costs regime in the Local Court might have made it cheaper to proceed in that Court. Importantly, his Honour noted that the proceedings had already been on foot for two years without the pleadings being completed.
6. There are no factors analogous to those in Brown which support a transfer of the Local Court Proceedings to this Court. Mr Liristis' claim arises out of a motor vehicle accident and (as I have been told) only involves a claim for property damage. As far as I can tell, the magistrate will not have to construe any instrument, let alone one which may throw up complex or unusual issues of construction. Further, the subject matter of the Local Court Proceedings has no connection with any proceedings that have come before this Court. Finally, whilst Mr Liristis was adamant that the plaintiffs "will most certainly appeal the orders of the Local Court", that position was based on Mr Liristis' assertion that the Local Court does not have jurisdiction to hear his case: T 12.5-.7; TL Affidavit at [10]. For the reasons I have stated earlier, I am not satisfied that that assertion is made out on the materials before me. I am not otherwise satisfied that any possibility of an appeal, in the circumstances of this case, militate against giving due weight to the fact that the costs regime in the Local Court will likely make it cheaper to proceed in that Court. Indeed, given that the matter has been set down for hearing in April of this year to commence in just over two months, I consider that the overriding purpose in s 56 of the CPA militates against transferring the proceedings out of the Local Court.
7. I am not otherwise satisfied that the transfer of the Local Court Proceedings should be made pursuant to the Court's jurisdiction under s 23 of the SCA.
8. If I be wrong and the jurisdictional limit of the Local Court would be exceeded in Mr Liristis' claim, both parties expressly accepted that the claim is well within the jurisdictional limit of the District Court: T 5.49, 21.30-.32, 23.29-.30. As Basten AJ observed in Brown at [20], this Court does not have power to transfer proceedings directly from the Local Court to the District Court, although in theory it might be open to transfer the proceedings to this Court and then transfer them to the District Court pursuant to s 146 of the CPA. No party asked me to take that course in this case, and without further consideration it should not be made.
9. Mr Liristis raised various concerns he had about filing a summons in the District Court to transfer the Local Court Proceedings to that Court. Those concerns broadly consisted of: the alleged delay of the Judicial Registrar of that Court "approving" filed documents (T 13.15-.19); [2] the fact that the matter will be unlikely to be heard before the existing hearing date in the Local Court (T 17.34-.36); and a general concern about filing a summons a third time in the District Court (despite Mr Liristis maintaining that the two prior summonses had never been filed), which concern arose from his assertion of an appeal having been lodged in respect of the two judgments of Newlinds SC DCJ and Abadee DCJ and "concerns" with the conduct of those judicial officers (T 12.44-13.1). In respect of the first, I have no way of knowing what, if any, alleged delay there is in the filing and "approval" of documents in the Registry of the District Court. In respect of the second, the unlikelihood of obtaining a hearing date until after the date already set down in the Local Court is a matter which equally militates against transferring the proceedings to this Court. In respect of the third, as I have noted earlier, there is no evidence that any appeal has been lodged in respect of either judgment (and indeed Mr Liristis at times indicated as much), nor is there any evidence at all of any "concerns" raised as to the conduct of either judicial officer in respect of the litigation between the parties. In any case, I have not been asked to facilitate any transfer to the District Court and it is ultimately a matter for Mr Liristis as to the course he wishes to take.

Conclusion

1. For the above reasons, Mr Liristis' summons should be dismissed. Costs should follow the event.
2. The orders of the Court are as follows: 1. The plaintiffs' summons filed in Court on 16 December 2024 be dismissed. 2. The plaintiffs pay the defendant's costs of the proceedings in this Court.

Endnotes

1. The parties were unable to tell me the name of the magistrate who heard the application.
2. Mr Liristis indicated that there is an "investigation" of the Judicial Registrar's conduct in "delaying" his matters: T 13.27-.28. However, no details or evidence of any such "investigation" were forthcoming. 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: 20 December 2024