Transfer application: Costs and complexity

Although not a medical claim, Hendi by her tutor Hamed Hendi v Commonwealth of Australia [2016] NSWSC 210 may be a useful reference in medical claims with complex issues.

The proceedings had been issued in the NSW Supreme Court, with the claimant later applying for transfer to the District Court, to avoid any cost penalties arising from the potentially low quantum of the claim.

Noting that the defendant and each of the cross-defendants agreed (at the time of hearing the application) not to argue (by reference to Uniform Civil Procedure Rules 2005 (NSW) r. 42.34) that the plaintiffs ought, if successful, be deprived of their costs in the event that those four sets of proceedings remain, continue to be prosecuted and are completed in the Supreme Court, the application for transfer was refused.

The court noted at [9], having referred also to a likely need for the court to determine whether a non-delegable duty existed for persons in community detention:

….there are several sufficient reasons for hearing the proceedings in this Court, including: the potential complexity of the proceedings; and the circumstance that the plaintiffs, having regard to the defendant and cross-defendants’ attitude on costs, will not be prejudiced by the matter remaining in the Supreme Court and may even receive a benefit in the form of an earlier hearing date.

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