Rodney Bruce Kneipp v Ian Robert Halliday [1998] ACTSC 196 (24 April 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Costs -
Assessment - Personal injury - Motor vehicle accident - Transfer
from Magistrates Court to Supreme Court - No complex or novel issues
-
Judgment sum awarded less than $50,000 - Costs penalty - Application of Order
65 rule 7A Supreme Court Rules .

  

  

   CANBERRA, 24 April 1998 (hearing and decision)

   #DATE 24:4:1998

  

   Counsel for the Plaintiff: Mr M Blunn


  Instructing Solicitors: Hunt & Hunt

   Counsel for the Defendant: Mr F G Parker

   Instructing Solicitors: Deacons Graham
& James

  

  

   THE COURT ORDERS THAT:

  

   1. Costs be awarded to the plaintiff in accordance with Order 65 rule 7A of
the Supreme Court Rules .

   2. The plaintiff to pay the defendant's costs of today's application.

  

  

   MASTER T. CONNOLLY

  

   This action was
a claim for damages for personal injuries arising from a
motor vehicle accident, and was commenced by way of ordinary claim in the
Magistrates Court in Canberra on 22 February 1996. On 27 July 1993 the
plaintiff applied, successfully, for the matter to be transferred
to the
Supreme Court. The matter was heard before me on 2 March 1998. Liability was
not in issue and the matter proceeded for one
day on an assessment only. On 13
March 1998 I awarded the plaintiff damages in the sum of $45,067, and reserved
the question of costs.
The matter was heard on 24 April 1998, and I awarded
costs to the plaintiff in accordance with Order 65 r 7A of the Supreme Court
Rules , with the plaintiff to pay the defendant's costs on the application. I
indicated that I would publish my reasons.

  

   The defendant
had offered to pay the plaintiff's costs in the manner which
I ordered. The plaintiff sought costs on a more generous basis, arguing
that
costs should be awarded on the Magistrates Court scale, and pointed to the
discretion vested in the Court to vary the costs
order.

  

   I was not persuaded that I should order costs other than in the manner laid
down in the Rules. It seems to me that
the Rules create a costs penalty which
must be borne in mind by litigants who contemplate a transfer of a matter from
the Magistrates
Court to this Court. I have previously indicated, in
Braithwaite v Philpot (unreported, SC 801 of 1997, 12 December 1997) that I
will adopt a fairly broad view in exercising the discretion contained in
section 383 of the Magistrates Court (Civil Jurisdiction)
Act in considering
applications to transfer a matter from that Court to the Supreme Court. I
indicated in that case that it was not
appropriate to conduct a

  

  

   "...mini assessment procedure in relation to the likely quantum of
damages".

   Rather, where
an experienced practitioner indicated that it was their view
that damages may exceed the Magistrates Court limit, I indicated that
I would
be minded to make an order for transfer. I indicated that where such a 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."

   In this case the matter before me was an assessment of damages in a motor
vehicle soft tissue injury. No complex or novel issues
arose. The plaintiff
had, on his own case, taken no time off work, and had obtained only
chiropractic treatment for a short period.
Out of pocket medical expenses
amounted to only $293. In such a case, the plaintiff, having elected to remove
the matter to this
Court, must expect that the costs to be awarded where the
damages recovered are less than the maximum available in the Magistrates
Court
to be that laid down in the Rules.

  

   It can be argued that there is an anomaly in the Rules, in that a plaintiff
who
recovers between $40,000 and $50,000 in the Supreme Court will, pursuant
to Rule 7A, recover costs at two thirds of the Supreme Court
scale, whereas if
they had continued with the proceedings, or commenced the proceedings, in the
Magistrates Court they could expect
to have costs awarded, under the
Magistrates Court Scale of Costs, at 90% of the Supreme Court scale. While
this may appear to be
an anomaly, and it has been so described by the learned
author of Civil Procedure ACT (15,845,1), it seems to me that it in fact
reflects the policy, which has been judicially noted, of discouraging
litigants from taking proceedings in the Supreme Court when
the Magistrates
Court is the appropriate court . I respectfully adopt the view of Gallop J in
Ditton v Gallagher (1992) 109 FLR 59
at 63 where His Honour said

  

  

   "The broader purpose of O65 r 7A is, in my opinion, to discourage litigants
from taking proceedings
in this Court when the Magistrates Court is
appropriate for their case."

   In my opinion special circumstances relating to the
complexity of the
litigation ( Humphries v TWT Ltd [1993] FCA 577;  (1994) 120 ALR 693 at 707) or the operation
of the apportionment legislation following a finding of contributory
negligence ( Symes
v Commonwealth (1987) 89 FLR 356 at 358) need be shown
before the ordinary operation of Order 65 rule 7A will be departed from in
personal injuries actions, particularly where the action was originally
commenced in the Magistrates Court.