Personal Injury Claims – which Court?

IntroductionCompensation Court

There are so many avenues in which legal redress can be sought and obtained. There are certainly a lot of technical or procedural pitfalls which, to the untrained eye, could seriously curtain your right to claim compensation.

Compensation Law – Which Court?

General Rule

Historically, Courts have maintained the mantle of justice, charged with providing justice, as best as money can do it[1], for a loss that you have suffered to your person.[2]

However, a new dawn has awakened. What is becoming so readily apparent is the do we see the role being passed to administrative bodies like the Motor Accidents Authority (now called SIRA / State Insurance Regulatory Authority) where a motor vehicle accident is involved and WorkCover where an accident happens at work. The purpose of such a change was to make things quicker, keeping lawyers on their toes and achieve a result quickly and cheaply whilst above all, maintaining and preserving just outcomes.[3]

You may have heard of the Local, District and Supreme Court and wondered what determines which Court should hear my case? The answer is normally answered by looking at the amount you are claiming and/or the type of dispute you have.

Normally[4] for a claim for personal injuries, the Court which would be able to hear your case will depend on the amount claimed;

a/ $10,000 or less[5] – the Local Court Small Claims Division,

b/ Between $10,001 and $60,000[6] – The Local Court, General Division,

c/ Between $60,001 and $750,000[7] – The District Court, and

d/ From $751,000 – the Supreme Court of New South Wales.

There are exceptions to this general rule.[8] Take motor accident claims as an example. The District Court[9] can hear claims (which are able to go to Court in any amount), with no monetary limitation.

Compared with other personal injury cases, the sealing of $750,000 can only be extended:

[1] Robinson v Harman [1848] All ER Rep 383

[2] Paras 13–14 Dixon J in Lee Transport Co Ltd v Watson (1940) 64 CLR 1

[3] See para 7-0000 of Civil Trials Bench Book, Judicial Commission of New South Wales, June 2007

[4] See the comments of Gibson DCJ in McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11. Here Judgment was given for $700.00 in the District Court. Costs were awarded.

[5] Section 29 (1) (b) Local Court Act 2007 (NSW)

[6] Section 29 (2) Local Court Act 2007 (NSW)

[7] Section 4 District Court Act 1973 (NSW)

[8] For example, where Section 44 of the District Court Act 1973 (NSW) does confer jurisdiction, it does NOT state that such jurisdiction is exclusive and exclusionary to all other jurisdictions, which, for the kind of case or circumstance of complexity may justify initiating in another Court.

[9] See Section 44 (1) (d) of the District Court Act 1973 (NSW)

a. By consent of the parties[1], or

b. If no objection is provided from 3 months from trial.[2]

Let’s take a look at a few examples to illustrate this:

Motor Accident Claims

If you have suffered injuries because of someone’s negligence involving (e.g. driving) a car then this process will likely apply to your claim.

Generally, if the insurer admits that their insured person is at fault, most disputes will be referred to a Motor Accident Claim Assessment Service for determination. For example if you have suffered injuries in a motor accident in Sydney when walking along a pedestrian crossing and the insurer has admitted that their insurer was at fault but denies you’re injured, then that dispute (as to your pain, suffering and loss) will be determined by the Motor Accident Assessment Service.

However, if the insurer alleges that their insured did not do anything wrong or denies you claim on ‘liability’ grounds, then usually, your claim will go to the District Court of New South Wales, before a Judge for hearing.

The latter of the two is much more formal.

Small Claims – example of pitfalls

Many small debts are brought in this jurisdiction.[3]

The general rule is that the Court cannot award an unsuccessful party to pay the legal costs and disbursements of a successful party.[4] This could be a significant amount of unrecoverable expenses to which you could be stuck with! This is even so for situations where the insurer is being unreasonable for which you would normally be able to obtain an indemnity costs order.[5]

There is some relief with certain types of claims having fixed amounts of costs etc. to which can be recovered from the Defendant[6], but they are very slim picking compared to the likely costs incurred.[7]

Every case is different and it is certainly recommended that you seek legal advice as soon as practicable. To that end, our office has an incredible amount of experience in motor accident claims and would certainly encourage you to contact our office if you’re seeking an accident lawyer in Sydney.

Timothy Driscoll LLM Sydney

3 August 2016

[1] Section 51 (2) (a) District Court Act 1973 (NSW)

[2] Section 51 (2) (b) District Court Act 1973 (NSW)

[3] For example, Scott v Burrett (2013) NSWLC 45

[4] Section 37 Local Court Act 2007 (NSW)

[5] Paras 29, 41 and 42; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287

[6] Regulation 2.9 Local Court Rules 2009 (NSW)

[7] For examples, Schedule 1 of the Legal Profession Uniform Law Application Regulations 2015 (NSW)