Australia, June 16 -- New South Wales Land and Environment Court issued text of the following judgement May 16:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196d627b6f7eb6f86f9fa509)

Disclaimer: Curated by HT Syndication.