District Court of Western Australia Act 1969 (WA), s 6(1), s 50(1), s 50(1a), s 76, s 77

Supreme Court Act 1935 (WA), s 17

1 EDELMAN J: By originating motion Mr Love has applied to transfer to this Court proceedings which have been commenced against him in the District Court. After short submissions were filed, both parties consented this week to this application being decided 'on the papers', that is without oral submissions.

2 The claim by KWS Capital against Mr Love was commenced in the District Court on 31 October 2013. The statement of claim is eight paragraphs long. KWS Capital claims $154,000, and interest, from Mr Love under an agreement which is said to be partly oral and partly written. KWS Capital says that under the agreement it was appointed as Mr Love's agent for obtaining approval for a loan from Balanced Securities Ltd. In return for obtaining this approval, KWS Capital says that Mr Love agreed to pay it a 'structuring fee' of $140,000.

3 A defence to the claim was filed on 20 November 2013. The defence is 23 paragraphs long. The defence puts in issue factual claims made by KWS Capital as well as the construction of the agreement upon which KWS Capital's claim is based.

4 Mr Love wants the District Court action resolved expeditiously. He has sworn an affidavit in which he explains that the caveat which KWS Capital has over his property in City Beach is impeding subdivision and settlement of that property.[1] I accept this evidence, which was uncontradicted, and I agree that the case should be resolved expeditiously.

5 Section 76 of the District Court of Western Australia Act 1969 (WA) provides that a judge of the Supreme Court may order that a matter brought in the District Court be remitted to be heard in the Supreme Court. The converse power exists in s 17 of the Supreme Court Act 1935 (WA) which provides power for a Supreme Court judge to remit a matter from the Supreme Court to the District Court.

6 The statutory discretion in s 76 of the District Court Act is not qualified. There is no express prescription for the manner in which this Court's discretion to order remittal to the Supreme Court should be exercised, although it must, of course, be exercised 'judicially' (that is, by reference to relevant principle). One consideration relevant to whether the discretion should be exercised will be that to which reference is made in s 77 of the District Court Act, which confers power on the District Court to remit a matter commenced in the District Court to the Supreme Court.[2] That consideration is

that the matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court.

7 In a recent application under s 17 of the Supreme Court Act 1935 (WA), McKechnie J remitted a matter from the Supreme Court to the District Court. His Honour observed that the decision to retain an action in the Supreme Court depends upon an assessment that the matter has some feature of complexity or difficulty which makes such a decision appropriate.[3]

8 KWS Capital's claim is well below the jurisdictional limit of the District Court. That jurisdiction includes personal actions to recover a sum due under a contract of up to $750,000,[4] not including interest.[5]

9 In written submissions, counsel for Mr Love says that '[w]hilst the claim is within the jurisdiction of the District Court there is nothing else to commend [the District Court] as the appropriate forum'.[6] I do not accept this submission. The nature and magnitude of the claims in the proceedings between KWS Capital and Mr Love are entirely suitable for hearing and determination in the District Court. So too are the legal issues.

10 Nevertheless, Mr Love says that the most efficient method of resolving the matter is for it to be transferred to this Court and that 'the efficient use of judicial resources is a paramount consideration and favours an order for the action to be remitted to this Court'.[7] Mr Love relies upon the fact that in this Court I have already heard various applications for the extension of a caveat lodged by KWS Capital over Mr Love's properties. He says that in the course of the hearing of those applications the issues between the parties 'had been clarified'. Mr Love says in his affidavit that in the course of the caveat hearing I made remarks to the effect that 'an action to determine the issues between [KWS Capital] and [Mr Love] should be brought back to [me] for hearing'.[8]

11 My associate has listened to the recording of the caveat application on 3 September 2013 and transcribed the relevant exchange. That exchange commenced with my questions of counsel for KWS Capital as to whether the substantive action would raise issues concerning an equitable charge and whether the action would be brought in this Court or in the District Court. The following exchange then occurred (with emphasis added in italics):

COUNSEL: I hadn't actually thought about the jurisdiction in relation to the equitable charge point. I had thought it would be in the District Court.

HIS HONOUR: Either way, is there any reason why [the writ and statement of claim] can't be filed this week?

COUNSEL: There is just an issue in relation to preparing the nature of relief sought which I think will probably take more than a couple of days to finalise given that the pleading will be not straight forward.

HIS HONOUR: Given the amount of money involved and the issues, particularly the issues that have been raised by this caveat ... it would seem to be of benefit to all of the parties that if you are going to bring the action you do bring it expeditiously. And ... if the action is brought in this Court there is no reason why, even before a directions hearing, the Court could not make orders by consent immediately sending the matter to mediation. There is a real potential, whichever court the action is brought in, without great care being paid to nature of claim and the way it is going to be litigated, for legal costs to overwhelm the amount of any possible recovery.

12 Nothing in my remarks should, or was intended to, convey the suggestion that the Supreme Court was necessarily the appropriate forum for the bringing of the action. In any event, no claim was brought in relation to the asserted equitable charge. The District Court is the more appropriate forum for the resolution of the dispute. The issues involved are not complex and there would be little, if any, saving of time arising from the fact that I have already heard related issues in the context of the extension of caveat application.

13 The application to remit the District Court action between KWS Capital and Mr Love to the Supreme Court is dismissed.

[1] Affidavit of Mr Love sworn 20 November 2013 [6].

[2] Salmat Document Management Solutions Pty Ltd v The Queen [2004] WASC 268 [15], [21] (Simmonds J).

[3] Boden v Chen [2013] WASC 308 [19] [20].

[4] District Court of Western Australia Act 1969 (WA) s 50(1), s 6(1).

[5] District Court of Western Australia Act 1969 (WA) s 50(1a).

[8] Affidavit of Mr Love sworn 20 November 2013 [5].