Change of venue and transfer between New South Wales courts

[2-1200] Change of venue

The venue for hearing is initially fixed by the plaintiff in the originating process (r 8.1(1)), and must be a venue at which the court is entitled to sit: r 8.1(2).

The court may order a change of venue on the application of either party: r 8.2(1). Its discretion in this respect is to be exercised according to the following test:

[W]here can the case be conducted or continued most suitably, bearing in mind the interests of all the parties … and the most efficient administration of the court?: National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 162.

Of particular relevance are:

  • the place of residence of the parties and of the majority of the witnesses, as well as the locality where the cause of action arose: Lehtonen v Australian Iron & Steel Pty Ltd [1963] NSWR 323; Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44;

  • the possibility that the trial of any question arising, or likely to arise, might not be fair or unprejudiced, for example, by reason of pre-trial publicity or intense local feeling, if held at the selected venue (particularly jury trials): Cording v Trembath [1921] VLR 163; Mowle v Elliott (1937) 54 WN (NSW) 104; Kings Cross Whisper Pty Ltd v O’Neil [1968] 2 NSWR 289;

  • the fact of undue delay or expense in conducting the hearing at the selected venue: Central West Equipment v Gardem Investments [2002] NSWSC 607;

  • the fact of hardship to the parties or witnesses by reason of the need for lengthy travel or prolonged absences from home or work if the trial is held at the selected venue.

The court may direct that the proceedings commenced at one venue, be continued at another venue where it is authorised to sit (r 8.2(2)), to allow for the convenience of witnesses. Where that occurs however, it is desirable to maintain continuity of the hearing rather than to disrupt it by ordering that the trial stand over part-heard to be re-listed at some future date which might suit the convenience of the parties or their counsel.

An application for a change of venue should be made by motion on notice supported by affidavit.

In the Common Law Division of the Supreme Court, since the abolition of fixed circuit sittings, applications to have proceedings heard (wholly or partly) outside Sydney are dealt with by the Chief Judge of the Division.

Change of venue between Local Courts

A Local Court may, of its own motion or upon application by a party, transfer proceedings to another Local Court in accordance with Pt 9, Div 3 of the CPA and UCPR r 44.1.

As a matter of practice, lengthy Local Court matters in the metropolitan area are transferred to the Downing Centre.

[2-1210] Transfer of proceedings between courts

Transfer to a higher court

Proceedings (including any cross-claims) pending in the District Court or in the Local Court may be transferred to the Supreme Court by order of the Supreme Court acting of its own motion or on application by a party to the proceedings: CPA s 140(1).

Proceedings pending in a Local Court (including any cross-claims) may be transferred to the District Court by order of the District Court acting of its own motion or on an application by a party to the proceedings: CPA s 140(2).

Proceedings in the District Court on a claim for damages arising from personal injury or death may only be transferred to the Supreme Court where it is satisfied of the matters set out in CPA s 140(3). For the determination of whether the likely award of damages will exceed the specified limit, the inquiry concerns the amount that the plaintiff could reasonably expect to obtain: Delponte, Ex parte; Re Thiess Brothers Pty Ltd [1965] NSWR 1468.

Proceedings in the Local Court may only be transferred to a higher court where the higher court is satisfied that there is sufficient reason for hearing the proceedings in the court: CPA s 140(4).

Subject to the s 140(3) limitation, the higher court has a discretionary power to order a transfer, which is to be exercised where a transfer is considered appropriate in the circumstances of the particular proceedings and matters in issue: Dusmanovic, Ex parte; Re Dusmanovic [1967] 2 NSWR 125 and Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924.

A transfer pursuant to s 140 does not confer on a transferee court additional jurisdiction that it does not otherwise have: Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 (2010) 77 NSWLR 601 (SC) at [11].

Terms may be imposed on the transfer, including the making of special costs orders to compensate for any prejudice which may be occasioned: Delponte, Ex parte; Re Thiess Brothers Pty Ltd, above.

Where an application for transfer has been made, but not determined, the higher court may stay the proceedings in the lower court, or the lower court may adjourn or stay the proceedings: s 142.

As to the effect of an order for transfer, see CPA ss 141 and 143.

There is further provision in CPA s 144 for the transfer of proceedings from the District Court to the Supreme Court in relation to proceedings under Subdiv 2 of Div 8 of Pt 3 (ss 133–135) of the District Court Act 1973, that is proceedings for possession of land, equity proceedings and proceedings under the Frustrated Contracts Act 1978, the Contracts Review Act 1980, and the Fair Trading Act 1987.

Transfer to a lower court

The Supreme Court may order that proceedings pending in that court, including any cross-claims in the proceedings, be transferred to the District Court or a Local Court if it is satisfied that the proceedings, including any such cross-claims, could have been commenced in the District Court or a Local Court, as the case may be: s 146(1).

The District Court may order that proceedings pending in that court, including any cross-claims in the proceedings, be transferred to a Local Court if is satisfied that the proceedings, including any such cross-claims, could properly have been commenced in a Local Court: CPA s 146(2).

In considering whether any proceedings or cross-claims could properly have been brought in the lower court, the higher court must have regard to the limits of the lower court’s jurisdiction when the proceedings or the cross-claims were commenced in the higher court: CPA s 146(3).

Proceedings in the Supreme Court on a claim for damages arising out of personal injury or death must be transferred to a lower court unless the conditions set out in CPA s 146(4) are satisfied.

If a matter is transferred from the Supreme Court to the District Court, the District Court has jurisdiction to hear and dispose of any proceedings transferred under CPA s 146(1), irrespective of the amount claimed: see s 44(1)(e) of the District Court Act 1973, and semble the same now applies to proceedings transferred to a Local Court by reason of CPA s 149.

As to the effect of an order for transfer, see CPA ss 147 and 148.

When proceedings are transferred to the District or a Local Court, it is desirable to specify the place of the court to which they are transferred.

Transfer between Supreme Court and Land and Environment Court

As to the transfer of proceedings between the Supreme Court and the Land and Environment Court, see CPA ss 149A–149E.

Transfer between Supreme Court and Industrial Court

As to the transfer of proceedings between the Supreme Court and the Industrial Court, see CPA ss 150–154.

[2-1220] Sample orders

Legislation

  • CPA ss 139–154

  • District Court Act 1973, ss 44(1)(e), 133–135

  • UCPR rr 8, 44.1