McLennan v Antonios (No. 2)

[2014] NSWDC 38

District Court

New South Wales

Medium Neutral Citation:

McLennan v Antonios (No. 2) [2014] NSWDC 38

Hearing dates:

10 April 2014

Decision date:

10 April 2014

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Defendants pay plaintiff's costs.

(2) Certification for the costs of Senior Counsel for the plaintiff.

Catchwords:

COSTS - personal injury proceedings - plaintiff suffers two motor vehicle accidents - settlement in one case but plaintiff awarded out of pocket expenses only in the second case - UCPR r 42.15 - whether proceedings should have been commenced in District or Local Court - whether plaintiff's Senior Counsel's fees should be included in costs order - complexity of proceedings warranted commencement in District Court and retainer of Senior Counsel

Legislation Cited:

District Court Act 1973 (NSW), ss 4, 44 and 48
Local Court Act 2007 (NSW), s 33
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.34(1)(a) and 42.35

Cases Cited:

Charafeddine v Morgan [2014] NSWCA 74
Jones v Sutton (No 2) [2005] NSWCA 203
Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287

Texts Cited:

-

Category:

Costs

Parties:

Plaintiff: Kirsty McLennan
First Defendant: Tony Antonios
Second Defendant: Nabil Antonios

Representation:

Plaintiff: Mr P N Khandhar
Defendants: Mr W M Fitzsimmons
Plaintiff: Brydens Law Office
Defendants: Moray & Agnew

File Number(s):

2012/108548

Publication restriction:

None

Judgment

1. The plaintiff in these proceedings was injured in two traffic accidents. On 18 June 2009 she suffered injuries, including a broken right leg, following a collision between her motor vehicle and another vehicle at an intersection. The second incident occurred on 20 August 2010, when she was thrown forward while travelling on a bus, injuring the same leg.

1. The plaintiff commenced two sets of proceedings in the District Court, the statement of claim in these proceedings being filed in April 2012. Case management orders were made for the evidence in each of these proceedings to be the evidence in the other proceedings. The plaintiff's claim in relation to the second motor vehicle accident was settled shortly before the hearing, and the sole subject of the hearing before me on 10 and 11 March 2014 was the claim for the first accident.

1. On 28 March 2014 I gave judgment for the plaintiff for $11,802. At the request of counsel for the defendants, I reserved the issue of costs, counsel foreshadowing an application under r 42.35 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

1. The application by counsel for the defendants raises some important issues in relation to motor accident claims, and as to the court in which small claims should be brought. I shall first set out the relevant provisions of the District Court Act 1973 (NSW) ("the Act") and the rules.

The relevant statutory provisions

1. While the jurisdictional limit of the court is $750,000 (s 4 of the Act), s 44(1) provides:

"(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(a) any action of a kind:

(i) which, if brought…