McLennan v Antonios

The parties' submissions 8Mr Fitzsimmons submits that the words "irrespective of the amount claimed" (s 44(1)(d)) merely entitles this court to hear motor accident claims where the amount exceeds the jurisdictional limit. It does not amount to an exemption from the provisions of UCPR r 42.35. Nevertheless, what s 44 makes clear is that this court is the court specialising in personal injury claims and in particular "any" motor accident claim. It is an interesting statutory point to determine whether the language of s 44(1)(d) excludes motor vehicle accident cases from the operation of UCPR r 42.25, but it is not one which I need to determine for the purposes of this application. 9Mr Khandhar points out that the District Court website (http://www.districtcourt.lawlink.nsw.gov.au/districtcourt/aboutus.html) contains the following public information: "The District Court of NSW is the intermediate Court in the state's judicial hierarchy. It is the largest trial court in Australia and has an appellate jurisdiction. The Judges of the District Court also preside over the Medical Tribunal of NSW. In its criminal jurisdiction, the District Court can deal with all criminal offences except murder, treason and piracy. In its civil jurisdiction the District Court can deal with motor accident cases, irrespective of the amount claimed, and other claims up to $750,000. Jurisdiction The District Court is the intermediate court in the State's judicial hierarchy. It is a trial court and has an appellate jurisdiction. In addition, the judges of the court preside over a range of tribunals. Civil jurisdiction In its civil jurisdiction, the court may deal with: - All motor accident cases, irrespective of the amount claimed - Other claims to a maximum amount of $750,000, though it may deal with matters exceeding this amount if the parties consent Civil cases In its civil jurisdiction the District Court may deal with: - all motor accident cases, irrespective of the amount claimed; - other claims from $100,101 to a maximum amount of $750,000, although it may deal with matters exceeding this amount if the parties consent. The types of matters commonly dealt with by the court include: - Breach of contract - Personal injury - Defamation" (emphasis added) 10Mr Khandhar also draws the court's attention to the following extract from a paper delivered at an international conference by the Hon JJ Spigelman AC on 21 September 2009, entitled "Case Management in NSW": "Although the basic rules are uniform, at the three levels of the court hierarchy practices differ, so that matters are treated with greater expedition in the Local Court than in the District Court and in the District Court than in the Supreme Court. Cases of greater legal or factual complexity are distributed upwards in the hierarchy of courts, with a view to ensuring that those which do not justify elaborate procedures are dealt with in a less elaborate way and vice versa. Obviously there remains considerable overlap and drawing a clear line is not always possible (page 10) The District Court, a high volume civil jurisdiction, significantly focused on matters involving personal injury, ... (page 17) The first measure to clear the backlog was an increase in the jurisdiction of the lower courts and the transfer of significant numbers of matters from the Supreme Court into the District Court. The jurisdiction of the District Court was increased and, in motor vehicle cases, was made unlimited. A Supreme Court judge sat for many days reviewing all of the files, identifying a large number of matters in which no issue of complexity or legal difficulty arose so that they could be handled, appropriately, at a District Court rather than a Supreme Court level (page 26)" (emphasis added) 11Both counsel agree that the District Court should be regarded as a specialist personal injury court, by reason of the large number of negligence, motor vehicle, work injury, medical negligence and other personal injury-related claims heard in this court. By contrast, the Local Court, although now having a jurisdictional limit of $100,000, rarely, if ever, deals with motor vehicle accident matters (except motor vehicle property damage cases). In addition, a two-day hearing in a civil matter in the Local Court would, in Mr Khandhar's submission, be difficult to arrange. 12Mr Fitzsimmons acknowledged that the District Court was the court of preference for both practitioners and plaintiffs, but submitted that "there has to be a culture change". The Local Court is just as well equipped to hear personal injury or motor vehicle cases, the magistrates are sufficiently experienced to hear them, and there is no provision in the Local Court Act 2007 (NSW) excluding jurisdiction of that court (s 33 Local Court Act 2007 (NSW)). 13Mr Fitzimmons described the issue as one of proportionality, adding that in Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287 at [29], McDougall J stated: "[29] The discretion as to costs is a broad one. It requires consideration of, among other things, a proportionate relationship between the amount that was recovered and the costs that might be allowed. It is to be exercised taking into account the prima facie position that costs follow the event." 14In Shield Mercantile Pty Ltd v Citigroup Pty Ltd, supra, the total of the judgment and interest was an amount less than half of the threshold amount of $500,000 (set out in UCPR r 42.34(1)(a)). McDougall J considered a 12-day hearing in which the plaintiff had not enjoyed "substantial success" (at [25]) but had recovered a sum considerably less than that sought warranted the making of no order as to costs on principles of proportionality (at [31]). 15The alternate choice of court in Shield Mercantile Pty Ltd v Citigroup Pty Ltd, supra, was the District Court of New South Wales, which maintains a specialist lists and offers case management, as well as a speedy hearing date and daily transcript. However, the differences between the District Court and Local Court are considerably greater. This is not a question of expertise, but of the nature of the workload, the Local Court being a court principally concerned with criminal proceedings, as Mr Khandhar pointed out in his submissions. 16I am satisfied that both at the time these proceedings were commenced and for the duration of the time that they were continued, the complicating factor of a second set of proceedings, also brought in this court, is sufficient basis for the bringing of these proceedings in this court. These proceedings were ordered to be heard together, with the evidence of one being the evidence in the other. This was to avoid the risk of issue estoppel (Charafeddine v Morgan [2014] NSWCA 74). 17Other factors to take into account are that the proceedings were hard-fought, the cross-examination of the first defendant and Mr Tran was extensive, that the damages claimed by the plaintiff exceeded $150,000, and that questions of both fact and law required to be determined. A transcript had to be ordered so that detailed submissions as to credit issues could be made, which is not easy to obtain for civil cases in the Local Court. These factors by themselves may not be sufficient but, when added to the complexity of two sets of personal injury proceedings, satisfy me that these proceedings should have been both commenced and maintained in this court. 18Taking of all of the above factors into account, this case is a clear example of proceedings which the plaintiff properly not only commenced but continued in the District Court, in that the proceedings in relation to the second accident was settled only a matter of days before the hearing of these proceedings. Accordingly, I am satisfied the plaintiff has made out her entitlement for costs to follow the event (UCPR r 42.1).

Certification of Senior Counsel 19Mr Fitzsimmon alternatively submitted that Senior Counsel was not required for these proceedings. 20I do not accept this submission. The role of Senior Counsel in advising as to the conduct of the two sets of proceedings, as well as cross-examining the witnesses, was clearly appropriate. 21In Jones v Sutton (No 2) [2005] NSWCA 203 the New South Wales Court of Appeal considered that it was unnecessary to retain Senior Counsel for a s 7A jury trial lasting longer than one week. Accordingly, the fees of Mr Tom Hughes QC could not be claimed by the plaintiff, although he was otherwise largely successful in obtaining costs for a defamation award of $5,000. However, this case turns on its own rather unusual facts, and caution needs to be exercised when considering cases on the certification of Senior Counsel prior to the enactment of the Civil Procedure Act 2005 (NSW). Where issues of complexity arise, the involvement of Senior Counsel may be necessary even though the damages which ultimately result are modest. 22Accordingly I certify the costs of Senior Counsel in these proceedings.

Orders (1)Defendants pay plaintiff's costs. (2)Certification for the costs of Senior Counsel for the plaintiff.

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: 22 April 2014