Goldberg v Hannan

[2025] NSWDC 179

District Court

New South Wales

Medium Neutral Citation:

Goldberg v Hannan [2025] NSWDC 179

Hearing dates:

19 March 2025

Date of orders:

16 May 2025

Decision date:

16 May 2025

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1)   That proceedings in the Local Court titled Alex Goldberg v Tim Hannan case number 2023/00022625 be transferred to the District Court of New South Wales pursuant to s 140(2) of the Civil Procedure Act 2005 (NSW).

(2)   That any Orders or Directions for case management and service of evidence made in the Local Court are revoked and the parties are to be subject to such Orders and Directions for case management and the service of evidence as are made in this Court.

(3)   That the question of costs is reserved. In the absence of agreement, I will decide costs in Chambers. To that end, the parties are to provide, by email to my Associate, written submissions not exceeding three pages in support of orders contended for, the plaintiff within seven days hereof and the defendant within seven days thereafter.

Catchwords:

CIVIL PROCEDURE – transfer of proceedings from Local Court to District Court pursuant to s 140 Civil Procedure Act 2005 (NSW) – plaintiff obtains default judgment in the Local Court – prior to assessment hearing being commenced plaintiff seeks transfer to District Court – defendant raises quantum and other discretionary matters in opposition to transfer – whether plaintiff has established sufficient reason for transfer

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), ss 56, 58, 140

Local Court Act 2007 (NSW), ss 29, 30, 31

Uniform Civil Procedure Rules 2005 (NSW), Pt 14, r 14.26, Pt 15 r 15.12

Cases Cited:

Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146

Brown v IJM Group Pty Ltd trading as Cove Agency [2024] NSWSC 578

Ex parte Delponte; Re Theiss Bros Pty Ltd [1965] NSWR 1468

Ex parte Sadler; Re Cemac Modular Constructions Pty Ltd (1973) 1 NSWLR 263

Kadic v Theiss Bros Pty Ltd (1967) 67 SR (NSW) 411; [1967] 2 NSWR 257

Liristis v White [2024] NSWDC 557

Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164

Sneddon v State of New South Wales [2012] NSWCA 351

Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337

Category:

Principal judgment

Parties:

Alex Goldberg (Plaintiff, In Person)
Timothy Francis Hannan (Defendant)

Representation:

Counsel:
M Short (Defendant)

Solicitors:
HTA Legal (Defendant)

File Number(s):

2024/00447912

Publication restriction:

Nil

JUDGMENT

Introduction

1. By Summons filed on 2 December 2024 the plaintiff, who is self-represented, seeks an order that proceedings between him and the defendant, presently before the Local Court at Tweed Heads, be transferred to the District Court pursuant to s 140(2) of the Civil Procedure Act 2005 (NSW) (CPA).

2. That application is opposed by the defendant.

3. The application was heard on 19 March 2025, with further submissions subsequently provided, pursuant to leave granted to the parties at the conclusion of the hearing.

Background

4. The background of the matter can be summarised as follows:

1. On 23 January 2020 the plaintiff attended a gym in Alexandria where he alleges he took part in a beginners’ boxing class conducted by the defendant.

2. The plaintiff alleges that in the course of that activity he suffered injury when he was struck by the defendant in circumstances giving rise to causes of action in assault, battery and negligence.

3. The plaintiff commenced proceedings against the defendant in the Local Court by Statement of Claim filed 22 January 2023.

4. On 27 July 2023 the defendant filed an appearance in the Local Court.

5. On 28 July 2023 the plaintiff by Notice of Motion, to be dealt with in the absence of the parties, sought default judgment relying upon service of the Statement of Claim on 28 June 2023.

6. That Notice of Motion was determined on 31 July 2023. The plaintiff obtained default judgment against the defendant and the matter was listed for assessment hearing in the Local Court on 11 October 2023.

7. On 25 August 2023 the defendant filed a Notice of Motion to set aside the default judgment.

8. That Notice of Motion was heard by Dunlevy LCM who, on 4 October 2023, dismissed the defendant’s application.

9. The defendant appealed to the Supreme Court from the decision of Dunlevy LCM.

10. On 22 April 2024 Schmidt AJ dismissed that appeal.

11. Orders were subsequently made in the Local Court listing the matter for assessment hearing on 3 December 2024, with ancillary orders for the filing of evidence.

12. The plaintiff filed evidence in accordance with that timetable and, on 29 November 2024, also filed a Statement of Particulars pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 15 r 15.12.

13. The defendant’s solicitors, due to an error had not noted the hearing date and only learned of it when, on 2 December 2024, they sought an extension of time to file evidence.

14. On that same day, 2 December 2024, the plaintiff filed the Summons to transfer the proceedings to this Court.

15. On 3 December 2024 the Local Court hearing was vacated.

The Present Application

5. The plaintiff acknowledged that he bears the onus of satisfying the Court that transfer is appropriate. In accordance with s 140(4) CPA, in the exercise of my discretion, the proceedings are not to be transferred unless the plaintiff satisfies me there is sufficient reason for hearing the proceedings in the District Court.

6. The predominant ground of the application is that the plaintiff’s damages are likely to exceed the jurisdictional limit of the Local Court. In submissions the plaintiff advanced a schedule assessing his damages at between $192,024 and $272,024.

7. The plaintiff also criticises the defendant for dilatory conduct in its defence of the Local Court proceedings and invokes ss 56 and 58 of the CPA in support of his application.

8. The defendant argued that the plaintiff’s damages at their highest, on admissible evidence, will not exceed $58,000, being less than the jurisdictional limit of the Local Court, which the defendant contends is $72,000.

9. The defendant further argued that a transfer would be productive of delay, and thus inconsistent with the tenets of s 56 of the CPA.

10. Otherwise, the defendant submitted that having commenced and obtained default judgment in the Local Court, it would be unfair to allow the plaintiff to now expand his claim and proceed in the District Court.

11. Finally, the defendant submitted that if leave to transfer is granted, the Court should do so on the basis that the defendant have leave to bring a fresh application to set aside the default judgment, given the significant change in circumstances that transfer would involve for the defendant.

12. In the course of argument I raised with the parties the decisions in Kadic v Theiss Bros Pty Ltd (1967) 67 SR (NSW) 411; [1967] 2 NSWR 257 (Kadic) and Ex parte Sadler; Re Cemac Modular Constructions Pty Ltd (1973) 1 NSWLR 263 (Ex parte Sadler), which in the short time available to me following the commencement of the hearing, appeared to be cases potentially relevant to the exercise of the Court’s discretion. Leave was granted for written submissions on those authorities.

The Plaintiff’s Potential Damages

13. A significant factor in the exercise of the Court’s discretion, and as noted, that which lies at the core of the plaintiff’s application, is whether the plaintiff is at risk of his entitlement to damages being restricted by the prevailing jurisdictional limit of the Local Court.

14. The defendant argues that the plaintiff is required to establish a “real chance” that his damages will exceed the jurisdictional limit of the Local Court. He draws upon the observations of Abadee DCJ in Liristis v White [2024] NSWDC 557 and in turn, the decision of Beech-Jones CJ at CL in Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164 where at [5] his Honour referred favourably to the following dicta of McCallum J in Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337 at [7] (citations omitted):

“The approach to be taken to that assessment is well-established. In determining the question posed by s 140(3), the Court is not required to engage in a preliminary trial of the matter and, in particular, is not required to engage in an individual assessment of each head of damage under which a claim is made … Rather, the task is to arrive at a likelihood, to an extent as a matter of impression but founded on the evidence before the Court. … The term ‘likely’ does not mean more probably than not. It requires the Court in a summary way to make an assessment as to whether there is a real chance of the plaintiff obtaining a verdict of more than [the jurisdictional limit] if successful.”

15. The plaintiff cites Ex parte Delponte; Re Theiss Bros Pty Ltd [1965] NSWR 1468 at 1469 in support of the proposition that in ordinary circumstances where it is reasonably contended that damages may exceed the jurisdictional limit, the transfer should be permitted to allow the proceedings to be determined by the appropriate tribunal.

16. The plaintiff’s Schedule of Damages, which, as I have said, ranges between $192,024 and $272,024, is made up of general damages, past and future out-of-pocket expenses, travel expenses, as well as aggravated and exemplary damages.

17. As the authorities mentioned earlier make clear, the Court is not required to engage in a detailed assessment or analysis of damages, nor is it appropriate for the Court to adjudicate on competing medical opinions. Rather, the question is whether the evidence relied upon gives rise to the impression of a “real chance”, or perhaps, what might also be termed, a “reasonably arguable case”, that damages will exceed the prevailing jurisdictional limit.

18. That said, as the defendant attacks the fabric of the plaintiff’s assessment of damages as being unrealistic, it is necessary to delve into the evidence to some extent to form a view as to the plaintiff’s prospects of achieving the damages contended for.

19. The plaintiff argued before me that the defendant, having filed no defence, is taken to have admitted the various allegations in the Statement of Claim, and that the pleaded allegations can inform the assessment of damages including the claims for aggravated and exemplary damages. I do not accept that is a correct statement of principle. As was said by Meagher JA in Sneddon v State of New South Wales [2012] NSWCA 351 at [185] (Sneddon), a default judgment can only give rise to issue estoppels in respect of what must “necessarily and with complete precision” have been determined.

20. Macfarlan JA in Sneddon also took the view at [152] that, without more, the failure of a defendant to file a defence does not carry with it an admission of the facts pleaded in the Statement of Claim as contemplated by UCPR Pt 14 r 14.26

21. So far as the pleadings in the Statement of Claim are concerned, I approach the issue at hand on the basis that the default judgment establishes no more than the defendant has a liability to pay the plaintiff damages arising out of events which occurred on 23 January 2020.

22. In his affidavit sworn 30 October 2024 the plaintiff describes being struck by facial and bodily blows by the defendant and attaches photographs showing bodily bruising and dental injuries, including photographs allegedly taken on the day in question which show his teeth, particularly the bottom teeth, to be misaligned and bleeding.

23. The plaintiff also attaches photographs showing subsequent dental work performed, and particularises physical injury to his left upper arm, chest and right shoulder, together with facial and dental injury.

24. The plaintiff alleges that the injuries cause him ongoing problems from a dental, physical and psychological perspective. He alleges his dental problems continue to affect his ability to eat and drink.

25. On 20 May 2024 the plaintiff saw Dr Nigel Curtis, oral and maxillofacial surgeon for medico-legal assessment. Dr Curtis recorded a history of ongoing jaw pain, a change of bite or occlusion, some gingival recession around certain teeth and some disfigurement associated with a laceration of the lower lip. The doctor accepted the plaintiff had suffered significant orofacial injuries, with teeth requiring splinting and root canal treatment and a prognosis for those teeth which may not be good. The doctor recommended certain treatment options and found an overall degree of 10% whole person impairment as a result of the subject injuries.

26. Of course, the opinion of Dr Curtis has not been tested, but in the context of the task at hand, it provides some parameters for assessing the plaintiff’s arguable range of damages.

27. In the event that the plaintiff establishes that the defendant committed an intentional act with the intent to cause injury to the plaintiff, his damages will be assessed outside the operation of the Civil Liability Act 2002 (NSW).

28. The plaintiff assesses general damages on this application as being between $70,000 and $130,000. That contemplates physical injury, psychiatric sequelae and some ongoing disfigurement.

29. The plaintiff claims past out-of-pocket expenses in an amount of $17,883 which includes over $10,000 in expenses for actual treatment and otherwise includes claims for interest and payments made to Dr Curtis, the consultant medico-legal specialist.

30. The plaintiff seeks the sum of $47,515 for future treatment which is said to be based upon estimates provided in the medical evidence upon which he relies.

31. There is also a claim for travel expenses of $6,626 based upon what the plaintiff says was travel for treatment.

32. Otherwise, the plaintiff claims between $50,000 and $70,000 for aggravated and exemplary damages.

33. As noted, the defendant argues that, based upon admissible evidence, the plaintiff’s best-case scenario supports damages totalling little over $58,000.

34. The defendant says that the claim for aggravated and exemplary damages simply does not run and emphasises the lack of admissible evidence to support such a claim. On this point the defendant relied upon closed circuit television footage of the incident to advance an argument that, on its face, the circumstances of the plaintiff’s injury would not support a case that the plaintiff is entitled to punitive or aggravated damages.

35. The defendant argues that the plaintiff is not entitled to past out-of-pocket expenses in respect of dental work undertaken prior to the incident in question given that the plaintiff additionally claims the cost of remedial treatment in respect of the injuries concerned. Otherwise, the defendant complains that past out-of-pocket expenses are infected by costs which are in fact associated with medico-legal consultations and thus not recoverable as damages.

36. The defendant argues that the claim for travel costs is misconceived and without any principled foundation.

37. The defendant contends that the claim for future losses advanced by the plaintiff ought be subject to a reduction for vicissitudes having regard to established principle, as confirmed in Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 at [128] – [137], [166] (Avopiling).

38. On this point, the plaintiff submits that a discount for vicissitudes is already built into his claim for future out-of-pocket expenses.

39. The defendant, as noted earlier, contends that the jurisdictional limit of the Local Court is $72,000. In doing so, he argues that the jurisdictional limit in s 29(2) of the Local Court Act 2007 (NSW) of $60,000 in respect of claims for damages relating to personal injury or death is subject to a 20% increase pursuant to s 31(1) of the Local Court Act because the plaintiff’s claim is also a “money claim”.

40. The defendant also points out that under s 30(4) of the Local Court Act pre-judgment interest is to be disregarded in the application of the Court’s jurisdictional limit.

41. Conceivably, the defendant’s approach to the extension of the Local Court’s jurisdiction for “money claims” is open to argument, however, no such argument was advanced before me and for present purposes I will assume, given its position, the defendant would be bound to a jurisdictional limit of $72,000 were the proceedings to remain in the Local Court.

42. It is readily apparent from the above outline that there are a number of matters of contest in relation to the plaintiff’s likely damages in the Local Court which, as I have said, is not for me to adjudicate for the purposes of this application.

43. The defendant’s contention that damages are unlikely to exceed an amount of $58,000 is possibly subject to some further reduction having regard to the Avopiling point raised by the defendant in argument before me, which was also the subject of supplementary submissions provided by both parties.

44. In general terms, it might be said that the defendant’s position is that the plaintiff’s best-case scenario reflects something like 20% less than the jurisdictional limit the defendant contends for.

45. The plaintiff’s position is that his best-case scenario is nearly four times greater than the Local Court’s maximum capacity to award him damages.

46. Clearly, there is a significant chasm between the respective positions of the parties.

47. Even assuming, for the purpose of argument, the defendant’s position in relation to those aspects of the plaintiff’s assessment of damages which is said to be contrary to established principle, it is clear that on the plaintiff’s assessment he would exceed the Local Court jurisdictional limit.

48. A significant factor in the divide between the parties lies in the approach taken to those components of the plaintiff’s claim for damages which involve an evaluative exercise, something which is, generally speaking, an intrinsic part of the assessment of damages for personal injury claims, as opposed to claims where pecuniary loss can be calculated with more precision.

49. It is in respect of these evaluative matters that minds can differ, as demonstrated by the respective positions of the parties. For now, the answer to the dispute is firmly embedded in the uncertainties of litigation.

50. Of course, the question to be decided by me does not involve an assessment of the plaintiff’s prospects of achieving the damages he asserts, only his prospects of exceeding the jurisdictional limit of the Local Court.

51. Whilst a forensic contest may yield a different outcome, at the preliminary level engaged by this application, on balance, my impression is that there is a “real chance” or what I would refer to as a reasonably arguable case that the plaintiff will exceed the jurisdictional limit of the Local Court.

Other Discretionary Factors

52. As I have said, the potential for the plaintiff to exceed the jurisdictional limit of the Local Court is a weighty matter for the purposes of the discretion I am to exercise.

53. That discretion is not however limited to considerations of quantum. In that regard, the defendant argues that the following matters are also significant:

1. The plaintiff bears the onus of establishing “sufficient cause” or “good reason” to transfer the proceedings.

2. At no point during the period of more than 18-months that the proceedings had been on foot prior to the plaintiff filing and serving a Statement of Particulars on 29 November 2024 had the plaintiff particularised a claim of more than around $25,000. It was in fact the affidavit in support of this transfer application where the plaintiff first attempted to quantify the claim and first mentioned the claim exceeding the jurisdictional limit of the Local Court.

3. That application was belated and came before this Court on the morning that the Local Court proceedings were listed for assessment hearing.

4. On the plaintiff’s conscious decision to enter default judgment immediately upon the expiration of the time for the filing of a defence, the plaintiff cast his claim, and with that, the defendant was entitled to assume a maximum exposure being the jurisdictional limit of the Local Court plus interest.

1. The plaintiff provides no reasonable explanation for the delay between commencement of proceedings in the Local Court, service of the Statement of Particulars under UCPR r 15.12 out of time and bringing the application to transfer.

2. The defendant was entitled to approach the defence of the case on the basis that the jurisdictional limit had been sealed, and this would impact on decisions such as whether to have the plaintiff medically examined.

3. The default in filing a defence and incurring judgment in the Local Court is disproportionate to the exposure the defendant now faces in the District Court.

54. The defendant also argues that the decisions in Kadic and Ex parte Sadler, referred to earlier, favour an exercise of the discretion against the plaintiff’s application.

55. The defendant makes the point that the plaintiff was in a position to ascertain the value of his claim, and the potential for it to exceed the jurisdiction of the Local Court, at the time of commencing proceedings and, in any event, before the plaintiff chose to apply for default judgment.

56. Allied to that point, the defendant contends that, effectively, by obtaining judgment in the Local Court, the plaintiff abandoned any claim for damages in excess of the jurisdiction of that Court.

57. The defendant argues there are parallels with Kadic because effectively the plaintiff had embarked upon a hearing of his case before the Local Court. The plaintiff cannot, on the defendant’s argument, be allowed to proceed to a determination of liability, through default, and thereby promote the defendant’s approach to the defence of the claim (in the context of the cost/benefit analysis of that defence in light of the limited exposure under the Local Court jurisdictional limit), before belatedly deciding to transfer the proceedings.

58. The defendant argues that the commencement of proceedings in the Local Court without providing the required Statement of Particulars until late last year are matters within the plaintiff’s control and weigh against the exercise of discretion in the plaintiff’s favour.

59. This feeds into an alternative submission the defendant makes, namely that were the plaintiff to abandon the default judgment and proceed in the District Court with all issues at play, the considerations would be different and would accommodate the transfer the plaintiff seeks.

60. The plaintiff argues there is no prejudice to the defendant arising from a transfer. He points to what is said to have been a lack of preparation for the allocated hearing in the Local Court as a factor which is relevant, and contrary to the defendant’s position, says that a transfer to the District Court would effect a just, quick and cheap resolution of the issues.

61. The plaintiff contends that he was unaware of the likely monetary value of the claim when proceedings were commenced and it was only discovered in about November of 2024, which is presumably about the time that the plaintiff prepared his Statement of Particulars.

62. The plaintiff argues that the decision in Kadic is distinguishable because there the proceedings were part-heard, with the plaintiff in that case making a conscious effort to proceed notwithstanding an appreciation that damages could exceed the prevailing jurisdictional limit. Again, the plaintiff argues that his was not a conscious decision to proceed in the knowledge that he may exceed the jurisdictional limit, and it was only on the eve of his application for transfer that he realised the jurisdictional restrictions that would apply to him. He argues that his self-represented status is a relevant factor to that ignorance.

63. The plaintiff contends that the defendant, being legally represented, should have been aware of the damages he might potentially be liable for, given the seriousness of the plaintiff’s allegations.

64. The plaintiff argues that were he aware of the potential jurisdictional limits upon him, he would have simply commenced proceedings in the District Court rather than adopt the protracted process he is now engaged in.

65. The plaintiff inverts the defendant’s complaint in relation to the lack of a timely Statement of Particulars and says that the defendant could have sought further and better particulars or pursued a Motion for particulars in accordance with the requirements of the UCPR.

66. The plaintiff emphasises the fact that he has not commenced the assessment hearing so the decisions in Kadic and Ex parte Sadler are distinguishable from the present case.

67. The plaintiff argues the defendant has not provided evidence that he approached the Local Court proceedings with an eye on the cost/benefit of obtaining evidence.

68. The plaintiff contends that there has been no conscious course of conduct on his part which would preclude transfer in the dispensation of justice between the parties.

69. Otherwise, the plaintiff submits it is irrelevant that he has default judgment. He argues that were liability in issue, he would nonetheless still be required to seek a transfer. He says discontinuing proceedings in the Local Court and recommencing in the District Court is not an option available to him as he would be statute barred in those circumstances.

70. Finally, the defendant in submissions in reply challenges the plaintiff’s contention that a lack of legal advice and his self-represented status are relevant factors when it comes to his ignorance of the appropriate jurisdictional limit. In support of his position the defendant submits that the plaintiff has legal qualifications and experience, based it is said, on the plaintiff’s “LinkedIn” profile. I ignore that submission entirely. It was not the subject of any evidence before me.

71. Nonetheless, I do consider that the plaintiff, in the detailed written submissions relied upon in support of this application, as well as in the oral submissions advanced before me, has demonstrated an understanding of the concepts, principles and issues involved which set him apart from a self-represented litigant entirely unfamiliar with the legal process.

Consideration

72. The plaintiff confirmed during the course of argument that there was no relevant change in his condition from the time he commenced proceedings until he made the application to transfer. As noted, the plaintiff’s position is that it was only in November 2024 that he realised his claim would exceed the jurisdictional limit.

73. The mainstay of the expert evidence in support of the plaintiff’s claim is the report of Dr Curtis dated 5 June 2024. It seems to me that whilst the plaintiff was no doubt aware of the injuries of which he complains when he commenced proceedings in the Local Court, objectively speaking, the way the matter progressed meant that the evidence informing the assessment of damages was not complete until the medico-legal report of Dr Curtis was available. Dr Curtis provides relevant evidence in relation to diagnosis, prognosis and likely future treatment expenses. He also provides an assessment of whole person impairment which, whilst not necessary, provides some perspective in relation to the nature and extent of the plaintiff’s problems.

74. The plaintiff gives evidence that after commencing his preparations and drafting submissions for the assessment hearing he subsequently learned of the jurisdictional limit confronting him in the Local Court. He does not explain how he came upon that knowledge.

75. One might wonder; having regard to the detailed pleading in the Statement of Claim, which includes a claim for interest, specifying the relevant section of the CPA, as well as the fact that the plaintiff was sufficiently across the rules of Court to obtain default judgment immediately upon the expiration of the time for filing a defence, how it was that he was not familiar with the jurisdictional limits of the Local Court. Nonetheless, the plaintiff’s evidence on the point provides an explanation for the, not insignificant, delay in bringing the application for transfer. It rebuts any suggestion that the plaintiff made a forensic decision to bring proceedings and obtain default judgment in the Local Court in the knowledge of its jurisdictional limits. There is some force in the plaintiff’s proposition that had he known of the prevailing jurisdictional limit he would have simply commenced in the District Court. However, that argument would appear to acknowledge the fact that had he turned his mind to it, the plaintiff would have known the potential quantum of the claim from the outset.

76. I accept that the decisions in Kadic and Ex parte Sadler are distinguishable from the facts of this case. Nonetheless, they demonstrate how a conscious decision to prosecute a claim in one jurisdiction may impact on a party’s entitlement to transfer when the Court comes to balance competing interests in the exercise of its discretion.

77. A significant platform of the defendant’s argument is that he was entitled to assume, after default judgment had been entered, that his potential exposure had been capped at the jurisdiction of the Local Court.

78. In my view, as things stand, that proposition is not tenable. Without some evidence to the contrary, the defendant, through his legal advisors, must be taken to have been aware that proceedings could be transferred, something which is not an unusual occurrence given the jurisdictional hierarchy of the Courts in this State.

79. Nonetheless, on the evidence before me, I can readily accept that the defendant, particularly after default judgment was obtained and an assessment hearing date allocated, assumed that the proceedings would be concluded in the Local Court. That does not however equate to a prejudice in the legal sense, as opposed to disappointment when transfer was sought. Had the defendant taken some step or action to his detriment based upon an assumption that the proceedings would be determined in the Local Court, the lateness of this application may conceivably have given rise to a discretionary reason for not allowing the transfer. However, there is no evidence that the defendant has relevantly acted to his detriment in reliance upon the plaintiff’s conduct of the litigation. It seems to me the defendant’s complaints in this respect may go more to questions of costs thrown away than the exercise of discretion in determining whether to transfer the proceedings.

80. Otherwise the evidence does not allow me to conclude, as the defendant advances, that the plaintiff made a decision to abandon any part of his entitlement to damages when he obtained default judgment.

81. I do not accept the plaintiff’s position that the defendant is complicit for not seeking particulars, nor do I accept that the defendant will necessarily be bound to conduct the litigation in this Court, if transferred, with a restriction on his ability to adduce evidence, as a remnant of orders made in the Local Court. I accept that in this jurisdiction the defendant may wish to explore evidentiary options which he may not have pursued in the Local Court where potential damages were more constrained. This would be a matter for consideration on its merits as part of the case management of the proceedings in this Court.

82. At the end of the day, the Court’s objective is to do justice between the parties, guided by the principles underlying s 56 of the CPA. As Basten AJ observed in Brown v IJM Group Pty Ltd trading as Cove Agency [2024] NSWSC 578 at [2], the requirement under s 56 to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” should usually be applied having regard to the actual circumstances at the date when the power to transfer is exercised and not by reference to past events, although the history of the litigation cannot be ignored.

83. In my view, the plaintiff although leaving his application to the last minute, has provided an explanation for that. I am not satisfied that a change of courts is part of some calculated forensic strategy of the plaintiff but rather I accept that it arose out of a belated realisation that his damages could exceed the jurisdiction of the Local Court. Whilst one might have expected the plaintiff to come to that realisation earlier, in my view the delay, in the circumstances, is not a reason to foreclose transfer and limit the plaintiff’s opportunity to recover damages.

84. The defendant in this Court is able to defend the claim for damages on its merits, so in that sense there is no prejudice to the defendant’s rights if the proceedings are transferred, whereas there is a real potential for deprivation of an entitlement to damages and thus prejudice to the plaintiff if the proceedings are not transferred.

85. For those reasons, in my view the plaintiff has demonstrated sufficient reason for hearing the proceedings in the District Court and has discharged the onus he bears to achieve transfer pursuant to s 140(2) of the CPA.

86. Finally, I observe that it is neither necessary nor appropriate that I give the defendant the leave sought to bring a further application to set aside the default judgment as a condition of transfer. Leave is not required, and it is open to the defendant to bring such an application if it is considered there are grounds to do so.

Orders

87. Accordingly, I order:

1. That proceedings in the Local Court titled Alex Goldberg v Tim Hannan case number 2023/00022625 be transferred to the District Court of New South Wales pursuant to s 140(2) of the Civil Procedure Act 2005 (NSW).

2. That any Orders or Directions for case management and service of evidence made in the Local Court are revoked and the parties are to be subject to such Orders and Directions for case management and the service of evidence as are made in this Court.

3. That the question of costs is reserved. In the absence of agreement, I will decide costs in Chambers. To that end, the parties are to provide, by email to my Associate, written submissions not exceeding three pages in support of orders contended for, the plaintiff within seven days hereof and the defendant within seven days thereafter.

**********

Decision last updated: 16 May 2025