Margaret Braithwaite v Mahesha Philpot; Procedure [1997] ACTSC 101 (12 December 1997)

SUPREME COURT OF THE ACT

MARGARET BRAITHWAITE v MAHESHA PHILPOT
No. SC 801 of 1997
Number of pages - 3
Practice & Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Practice & Procedure - Transferral of matter from Magistrates Court to Supreme Court - Material sufficient to support such an application.

HEARING

CANBERRA, 5 December 1997 (hearing), 12 December 1997 (decision)

12:12:1997

Appearances

Counsel for the Plaintiff: Mr J Taylor

Instructing Solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr R Refshauge

Instructing Solicitors: Deacon Graham & James

ORDER

Order:

1. These proceedings be removed from the Magistrates Court of the Australian Capital Territory to the Supreme Court of the Australian Capital Territory.

2. The plaintiff to pay the defendant's costs thrown away by reason of the adjournment on 21 November 1997.

3. Otherwise, costs of the application be reserved.

DECISION

MASTER CONNOLLY

This application came before me by way of a Notice of Motion seeking the removal of these proceedings from the Magistrates Court. On the first return date of the motion, the motion was supported by an affidavit filed by a law clerk indicating that it was his belief that it was likely that the amount of damages the plaintiff might recover would exceed the jurisdiction of the Magistrates Court. The solicitor for the plaintiff applicant at that hearing tendered a further affidavit from the law clerk in which that person deposed that he had held a conference with Counsel who advised him that damages would be likely to exceed the jurisdictional limits of the Magistrates Court. The matter was by consent adjourned to the next week's motions list.

On that occasion I heard argument from the parties, and ordered that the matter be transferred into this Court. Given the nature of the argument it seemed appropriate that I provide my reasons in writing in order to provide guidance in relation to the matters which must be established in order to support an application to transfer proceedings.

The respondent argued that there was insufficient material to justify a decision to remove the proceedings. Mr Refshauge argued, correctly, that this is not a matter where a plaintiff has a right to remove proceedings, or where the parties may consent to an application. Rather, Section 383 of the Magistrates Court (Civil Jurisdiction) Act requires the court to exercise its discretion to transfer on such terms as the Supreme Court thinks just. The matter is stated in the Civil Procedure Australian Capital Territory thus ([52,730.1])

"An order may be made under s.383 whenever the Supreme Court considers it proper or desirable to remove proceedings into the Supreme Court. That question is discretionary."

Mr Refshauge argued that it is necessary for an applicant to produce sufficient material to allow a judicial determination to be made that the claim is likely to result in an award of damages which may exceed the jurisdictional limit of the Magistrates Court, which is $50,000. He argued that the material in the two affidavits was insufficient.

I was in agreement that an affidavit from a law clerk deposing to that person's opinion is insufficient. That was all the material that was available on the first return of the Notice of Motion. On that hearing leave was given to file the additional affidavit in Court, and I found that this was a sufficient basis for me to exercise the discretion.

In my opinion it is sufficient to support an application for removal of a matter from the Magistrates Court for an affidavit to be tendered from a non practitioner which deposes that Counsel's opinion has been obtained as to quantum in the matter, and that that opinion is that the limit of the Magistrates Court is likely to be exceeded. I do not require further material. An affidavit to the same effect from a practitioner of this Court, deposing that, from their experience it is their opinion that the damages may well exceed the Magistrates Court limit, would also be sufficient. On one strict view of the discretion, it would be necessary for me to in effect conduct a mini assessment procedure in relation to the likely quantum of damages. As well as being wasteful and expensive, this would create an additional danger. Most Notices of Motion seeking transfers of proceedings relate to personal injuries claims, many of them relating to motor vehicle accidents. Most, if not all of these matters, will in due course be listed for hearing before the Master. The Master will also ordinarily hear applications for removal. The obvious danger is that too detailed an examination of the question of quantum on an application for transfer could colour the judicial officer who must determine the matter when it comes on for hearing.

Where opinion is obtained from Counsel or an experienced practitioner that a matter is likely to exceed the limit of the Magistrates Court, that will be sufficient to justify a removal. In forming this view of the appropriate practice to be adopted in such matters, I have been mindful of the consequences of a decision to remove if it be in error. If a matter is removed from the Magistrates Court to the Supreme Court, and the matter eventually results in an award of damages less than $50,000, any prejudice or disadvantage to the defendant can easily be resolved by an appropriate costs order. Such orders are frequently made. On the other hand, if an application for removal is refused, the consequences for a plaintiff can not be resolved by a costs order if the Magistrate forms the view on final hearing that a greater award would have been justified. The plaintiff in such circumstances stands to lose forever the true quantum of award for the damages which should be awarded to provide proper recompense for the tortious act complained of. This is a further reason for taking the view that, where affidavit evidence is produced that Counsel's opinion has been properly obtained, or a view has been formed by an experienced solicitor, a removal order will normally be made without the need to produce detailed evidence of the nature of the injuries and disabilities, as the statutory test as to a just outcome will be met by the grant of transfer.

As the evidence before me on the first hearing day was insufficient to justify the order, it is appropriate that the defendant have the costs thrown away by reason of that adjournment. Otherwise, the appropriate costs order, which is the normal form of order which ought be made in applications for removal, is that costs of the transfer application be reserved.

An order that costs be costs in the cause, which is not infrequently sought, is inappropriate in a transfer application, as it would produce the inappropriate outcome if the final decision of this Court is an award of damages to the plaintiff in a sum less than $50,000. In such a case, the costs of the transfer, which may in retrospect have been inappropriate, may well be awarded to the defendant.

I should note that a broad approach to the question of transfer of matters may provide a costs advantage. The fee to issue proceedings in this Court is presently $494. The fee to issue proceedings for a claim greater than $10,000 in the Magistrates Court is presently $283. It is of course proper that a fee differential applies, and that the greater cost of administration of this Court attract a higher fee. It would be most unfortunate if a broad approach to the transfer discretion was to be seen as an invitation to commence proceedings in the Magistrates Court, as a matter of course, and then transfer, in order to save over $200 on the cost of initiating proceedings, as this could undermine legitimate public revenue. An appropriate fee on transfer would resolve this potential for abuse.