Cooper v Moloney - [2012] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COOPER v MOLONEY & ORS
[2012] SASC 35
Reasons of Judge Lunn a Master of the Supreme Court
9 March 2012
PROCEDURE
Transfer of actions between Supreme and District Courts under s 24 of the District Court Act 1991 – one of several defendants in subsequent Supreme Court action commenced action in District Court against Supreme Court plaintiff – before Statement of Claim filed in District Court action plaintiff commenced this Supreme Court action against plaintiff in District Court and other related defendants who counterclaimed against him – defendants in Supreme Court applied for transfer of District Court action to Supreme Court but Supreme Court plaintiff sought transfer of Supreme Court action to District Court.
Held: Supreme Court plaintiff could have counterclaimed in District Court but elected to come to the Supreme Court and no good reason why he should not be held to his election – Order for transfer of District Court action to Supreme Court.

COOPER v MOLONEY & ORS
[2012] SASC 35
JUDGE LUNN:
Reasons on applications to transfer actions

On 31 August 2011 the third defendant in this action instituted an action DCCIV-11-2136 in the District Court (“the District Court action”) against the plaintiff in this action. The Summons was not supported by a Statement of Claim. An interlocutory application was issued with the Summons seeking an injunction restraining the defendant in that action from entering upon certain land and performing work on it.
At a hearing of that interlocutory application on 1 September 2011 before Davey DCJ the application, but not the action, was resolved by undertakings.
On 11 November 2011 the plaintiff instituted this action claiming $727,921 from the five defendants.[1] The causes of action pleaded in the Statement of Claim were for breaches of various agreements and including an agreement which was apparently the agreement which was in issue in the District Court action. On 1 December 2011 the defendants filed a Notice of Address for Service.
[1] It is not necessary to differentiate between the defendants for the purposes of the present application, except where it is specifically stated.
On 6 December 2011 the third defendant, as plaintiff in the District Court action, filed a Statement of Claim in that action seeking a permanent injunction, a return of chattels and damages for trespass.
On 12 December 2011 the defendants filed a Defence and Counterclaim in this action for $262,279 plus unspecified general damages for the loss of use of some sheds from February 2011. On 30 January 2012 the plaintiff filed a Reply and Defence to Counterclaim in this action.
The pleadings in the District Court action have been completed, there has been mutual disclosure of documents and that action is ready to be referred for trial.
On 15 February 2012 the defendants filed an application (FDN5) in this action seeking orders either that this action be transferred to the District Court, or that the District Court action be transferred to this Court. No-one disputes that both actions should be in the same court and determined concurrently, but the plaintiff wants this action transferred to the District Court and the defendants want the District Court action transferred to this Court.[2]
[2] This is the opposite of what would usually be the case, as the plaintiff in this Court is opting for the District Court and the plaintiff in the District Court is opting for the Supreme Court.
The plaintiff could have pursued his causes of action raised in this action by a counterclaim in the District Court action, but he elected, as was his right, to institute a fresh action in this Court. Whilst the interlocutory application in the District Court had been finalised, that action was still on foot and it was open to the plaintiff to counterclaim there. He was not obliged to wait until the third defendant had filed its statement of claim there. The counterclaim could have proceeded in the District Court even if the third defendant had not filed any statement of claim. There is no significance in the plaintiff having instituted this Supreme Court action before the Statement of Claim was filed in the District Court.
Having elected to institute his action in this Court, the plaintiff should not be permitted to transfer it to the District Court without the consent of the defendant unless he shows that it is in the interests of justice that he should be permitted to do so. His counsel submitted that he may be at risk on costs under 6R 263(3)(h) as he may not recover a judgment for at least $75,000. I do not accept this. To have pleaded a claim for $727,921 the plaintiff must have bona fide believed that he had arguable causes of action for that amount, or at least much of it. I do not accept that the matters disclosed in the Defence and Counterclaim now mean that the plaintiff believes he is genuinely at risk of not recovering more than $75,000. The Defence and Counterclaim do little more than dispute the agreements alleged by the plaintiff. The 6R 33 procedures were not carried out before instituting the action. There had obviously been considerable animosity between the parties and there is no ground to believe that the plaintiff could have expected the defendants to have agreed with his version of the agreements.[3] I also do not accept that if both the claim and the counterclaim succeed to some extent this will necessarily result in a balance judgment which would be relevant to the limit of $75,000 under 6R 263(2)(h). It appears that not all of the claims and counterclaims are necessarily against, or by, all of the defendants, and it may well be that at the end of any trial the Judge will have to enter multiple judgments. Furthermore, if the contents of the Defence and Counterclaim had, as he alleges, caused the plaintiff to believe that the action should have been in the District Court, he should have immediately taken out an application for a transfer, but he did not.
[3] It appears the plaintiff had taken out a restraining order against the first defendant because of arguments between them.
The amounts in issue on the combined claim and counterclaim exceed $1 million. It would appear that the issues to be resolved are factual rather than legal. However, it is unclear what, if any, complexities there may be in resolving these issues. I am told a trial is likely to take up to two weeks. In view of the amount at stake, this is not a matter which is so obviously unfit for determination by the Supreme Court that it should be transferred to the District Court.
The costs to the parties of pursuing the actions in the Supreme or the District Court will be about the same, although the trial fees in the Supreme Court are higher. Although the District Court action is now ready to be set for trial, if this action was to be sent to the District Court, there would presumably be a substantial delay before the combined actions could be referred for trial. There is no likelihood that a trial in the District Court would be at a significantly earlier date than one in the Supreme Court.
The plaintiff’s counsel referred me to the decision of Bleby J in Liddell v Southern Area Health Service,[4] but that case is of no particular assistance in exercising the discretion under s 24 of the District Court Act as to whether this action should be transferred.
[4] [2010] SASC 11.
In my view, as the plaintiff elected to institute this action in the Supreme Court, it should remain here unless good reason is shown why it should be transferred. The issues in the action in this Court are much broader than those in the District Court. The appropriate exercise of the discretion under s 24 of the District Court Act is that the District Court action should be transferred into this Court.
I have today made the following orders:
1That District Court action DCCIV-11-2136 be transferred into this Court.
2Costs of FDN5 to be the defendants’ costs.
3Fit for counsel.
4Further status hearing to be held on Wednesday, 4 April 2012 at 11.30am.