McLennan v Antonios (No. 2)
[2014] NSWDC 38
•10 April 2014
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 42.35Cases 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 287Texts Cited: - Category: Costs Parties: Plaintiff: Kirsty McLennan
First Defendant: Tony Antonios
Second Defendant: Nabil AntoniosRepresentation: 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
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.
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.
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").
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
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 in the Supreme Court, would be assigned to the Common Law Division of that Court, and
(ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,
other than an action referred to in paragraph (d) or (e),
(c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will,
(d) any motor accident claim, irrespective of the amount claimed,
(d1) any work injury damages claim, irrespective of the amount claimed,
(e) any proceedings transferred to the Court under section 146 (1) of the Civil Procedure Act2005 , irrespective of the amount (if any) claimed in those proceedings."
Section 48(1) of the Act provides:
"(1) An action in which the amount claimed does not exceed $4,000 and which could have been commenced in the Local Court shall not be commenced in the District Court except with the leave of the District Court, which leave may be given on terms."
UCPR r 42.35 provides:
"42.35 Costs order not to be made in proceedings in District Court unless Court satisfied proceedings in appropriate court
(1) This rule applies if:
(a) in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and
(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.
(2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted."
The parties' submissions
Mr Fitzsimmons submits that the words "irrespective of the amount claimed" (s 44(1)(d)) merely entitles this court to hear motor accident claims where the amount exceeds the jurisdictional limit. It does not amount to an exemption from the provisions of UCPR r 42.35. Nevertheless, what s 44 makes clear is that this court is the court specialising in personal injury claims and in particular "any" motor accident claim. It is an interesting statutory point to determine whether the language of s 44(1)(d) excludes motor vehicle accident cases from the operation of UCPR r 42.25, but it is not one which I need to determine for the purposes of this application.
Mr Khandhar points out that the District Court website ( contains the following public information:
"The District Court of NSW is the intermediate Court in the state's judicial hierarchy. It is the largest trial court in Australia and has an appellate jurisdiction. The Judges of the District Court also preside over the Medical Tribunal of NSW.
In its criminal jurisdiction, the District Court can deal with all criminal offences except murder, treason and piracy.
In its civil jurisdiction the District Court can deal with motor accident cases, irrespective of the amount claimed, and other claims up to $750,000.
Jurisdiction
The District Court is the intermediate court in the State's judicial hierarchy. It is a trial court and has an appellate jurisdiction. In addition, the judges of the court preside over a range of tribunals.
Civil jurisdiction
In its civil jurisdiction, the court may deal with:
- All motor accident cases, irrespective of the amount claimed
- Other claims to a maximum amount of $750,000, though it may deal with matters exceeding this amount if the parties consent
Civil cases
In its civil jurisdiction the District Court may deal with:
- all motor accident cases, irrespective of the amount claimed;
- other claims from $100,101 to a maximum amount of $750,000, although it may deal with matters exceeding this amount if the parties consent.
The types of matters commonly dealt with by the court include:
- Breach of contract
- Personal injury
- Defamation" (emphasis added)
Mr Khandhar also draws the court's attention to the following extract from a paper delivered at an international conference by the Hon JJ Spigelman AC on 21 September 2009, entitled "Case Management in NSW":
"Although the basic rules are uniform, at the three levels of the court hierarchy practices differ, so that matters are treated with greater expedition in the Local Court than in the District Court and in the District Court than in the Supreme Court. Cases of greater legal or factual complexity are distributed upwards in the hierarchy of courts, with a view to ensuring that those which do not justify elaborate procedures are dealt with in a less elaborate way and vice versa. Obviously there remains considerable overlap and drawing a clear line is not always possible (page 10)
The District Court, a high volume civil jurisdiction, significantly focused on matters involving personal injury, ... (page 17)
The first measure to clear the backlog was an increase in the jurisdiction of the lower courts and the transfer of significant numbers of matters from the Supreme Court into the District Court. The jurisdiction of the District Court was increased and, in motor vehicle cases, was made unlimited. A Supreme Court judge sat for many days reviewing all of the files, identifying a large number of matters in which no issue of complexity or legal difficulty arose so that they could be handled, appropriately, at a District Court rather than a Supreme Court level (page 26)" (emphasis added)
Both counsel agree that the District Court should be regarded as a specialist personal injury court, by reason of the large number of negligence, motor vehicle, work injury, medical negligence and other personal injury-related claims heard in this court. By contrast, the Local Court, although now having a jurisdictional limit of $100,000, rarely, if ever, deals with motor vehicle accident matters (except motor vehicle property damage cases). In addition, a two-day hearing in a civil matter in the Local Court would, in Mr Khandhar's submission, be difficult to arrange.
Mr Fitzsimmons acknowledged that the District Court was the court of preference for both practitioners and plaintiffs, but submitted that "there has to be a culture change". The Local Court is just as well equipped to hear personal injury or motor vehicle cases, the magistrates are sufficiently experienced to hear them, and there is no provision in the Local Court Act 2007 (NSW) excluding jurisdiction of that court (s 33 Local Court Act 2007 (NSW)).
Mr Fitzimmons described the issue as one of proportionality, adding that in Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287 at [29], McDougall J stated:
"[29] The discretion as to costs is a broad one. It requires consideration of, among other things, a proportionate relationship between the amount that was recovered and the costs that might be allowed. It is to be exercised taking into account the prima facie position that costs follow the event."
In Shield Mercantile Pty Ltd v Citigroup Pty Ltd, supra, the total of the judgment and interest was an amount less than half of the threshold amount of $500,000 (set out in UCPR r 42.34(1)(a)). McDougall J considered a 12-day hearing in which the plaintiff had not enjoyed "substantial success" (at [25]) but had recovered a sum considerably less than that sought warranted the making of no order as to costs on principles of proportionality (at [31]).
The alternate choice of court in Shield Mercantile Pty Ltd v Citigroup Pty Ltd, supra, was the District Court of New South Wales, which maintains a specialist lists and offers case management, as well as a speedy hearing date and daily transcript. However, the differences between the District Court and Local Court are considerably greater. This is not a question of expertise, but of the nature of the workload, the Local Court being a court principally concerned with criminal proceedings, as Mr Khandhar pointed out in his submissions.
I am satisfied that both at the time these proceedings were commenced and for the duration of the time that they were continued, the complicating factor of a second set of proceedings, also brought in this court, is sufficient basis for the bringing of these proceedings in this court. These proceedings were ordered to be heard together, with the evidence of one being the evidence in the other. This was to avoid the risk of issue estoppel (Charafeddine v Morgan [2014] NSWCA 74).
Other factors to take into account are that the proceedings were hard-fought, the cross-examination of the first defendant and Mr Tran was extensive, that the damages claimed by the plaintiff exceeded $150,000, and that questions of both fact and law required to be determined. A transcript had to be ordered so that detailed submissions as to credit issues could be made, which is not easy to obtain for civil cases in the Local Court. These factors by themselves may not be sufficient but, when added to the complexity of two sets of personal injury proceedings, satisfy me that these proceedings should have been both commenced and maintained in this court.
Taking of all of the above factors into account, this case is a clear example of proceedings which the plaintiff properly not only commenced but continued in the District Court, in that the proceedings in relation to the second accident was settled only a matter of days before the hearing of these proceedings. Accordingly, I am satisfied the plaintiff has made out her entitlement for costs to follow the event (UCPR r 42.1).
Certification of Senior Counsel
Mr Fitzsimmon alternatively submitted that Senior Counsel was not required for these proceedings.
I do not accept this submission. The role of Senior Counsel in advising as to the conduct of the two sets of proceedings, as well as cross-examining the witnesses, was clearly appropriate.
In Jones v Sutton (No 2) [2005] NSWCA 203 the New South Wales Court of Appeal considered that it was unnecessary to retain Senior Counsel for a s 7A jury trial lasting longer than one week. Accordingly, the fees of Mr Tom Hughes QC could not be claimed by the plaintiff, although he was otherwise largely successful in obtaining costs for a defamation award of $5,000. However, this case turns on its own rather unusual facts, and caution needs to be exercised when considering cases on the certification of Senior Counsel prior to the enactment of the Civil Procedure Act 2005 (NSW). Where issues of complexity arise, the involvement of Senior Counsel may be necessary even though the damages which ultimately result are modest.
Accordingly I certify the costs of Senior Counsel in these proceedings.
Orders
(1) Defendants pay plaintiff's costs.
(2) Certification for the costs of Senior Counsel for the plaintiff.
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Decision last updated: 22 April 2014
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