FRANKLINS LTD and ANOR v FLANNERY [1997] NSWCA 115

FRANKLINS LTD and ANOR v FLANNERY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 27 October 1997, 27 October 1997 [1997] NSWCA 115

COSTS — DISTRICT COURT — proceedings within jurisdiction of Local Court — judgment for less than $10,000 — whether plaintiff entitled to costs DCR Pt38 r1B

The respondent, a minor, recovered $7,000 in a personal injuries action brought in the District Court at East Maitland. Liability was admitted. The award was below the prescribed amount of $10,000 under DCR Pt38 rlB. The trial Judge awarded the respondent costs on the basis that there was sufficient reason for bringing the action in the District Court because the assessment of damages for minors was fraught with difficulty, when the action was commenced it was reasonable to think that the plaintiff might well have recovered more than $10,000, and if the defendant thought otherwise it could have applied for a transfer to the Local Court. The defendant applied for leave to appeal against the award of damages and the order for costs.

HELD: (1) The assessment of damages for a minor is not in principle more difficult than for an adult. The Damages (Infants and Persons of Unsound Mind) Act 1924 contemplates proceedings being brought by infants in the Local Court. The majority (Beazley JA doubting) also held that there was no proper basis for a finding that the plaintiff might reasonably have expected to recover more than the prescribed amount when the proceedings were commenced. There was no onus on the defendant to seek a transfer to the Local Court and the costs incurred in a contested transfer application would be disproportionate to the total cost of the proceedings. (2) The costs recoverable in the District Court were not greatly different from those recoverable in the Local Court. (3) It was cheaper and more efficient for the case to be brought in the District Court where it would be disposed of in a running list instead of in the Local Court where there was a risk that it could be adjourned part heard to a future date. (4) The costs order should not be disturbed.