Comments on Changes to Queensland Courts’ Civil Jurisdiction

Introduction

On 1 November 2010, substantial changes will take place to the civil jurisdiction of the District Court and the Magistrates Courts.¹

This article will review the circumstances and reasons leading to those changes, the procedures resulting from the changes to the jurisdictional limits, and their practical ramifications.

The changes

The most significant changes are the following:²

• the civil jurisdiction of the District Court will increase from $250,000 to $750,000;
• the civil jurisdiction of the Magistrates Courts will increase from $50,000 to $150,000;
• the lower monetary limit of a judgment of the Magistrates Courts from which a party has a right of appeal to the District Court will be increased from $5,000 to $25,000;
• the right of a party in an action in the District Court to require a trial by jury, which currently exists in any action in which the amount claimed exceeds $10,000, will only exist in actions exceeding the jurisdiction of the Magistrates Courts (ie, $150,000);
• it will no longer be necessary to seek leave to appeal from interlocutory decisions of the District Court where the amount or subject matter of the judgment exceeds the jurisdiction of the Magistrates Courts; rather, there will be an appeal as of right from all such decisions to the Court of Appeal;
• there will be a new scale of costs in the Magistrates Courts, for matters in which the judgment (not the claim) exceeds $50,000.

None of these changes will affect cases already on foot before 1 November.

Process leading to the increases

In July 2008, the then Attorney-General, Kerry Shine, appointed former Supreme Court judge, Martin Moynihan AO, QC, to “examine and report on the working of Queensland Courts in the civil and criminal jurisdictions with a view to making more effective use of public resources.” The terms of appointment³ went on to say:

“In recognition of the increasing volume and complexity of demands on the State’s civil court system and increases in the time and resources consumed by the litigation process, it is timely to examine whether the current jurisdictional limits of Queensland’s courts are appropriate. … The Reviewer is to report on:

1. Monetary limits for the civil jurisdiction

Are the monetary limits of the District Court and Magistrates Court [sic] appropriate?”

In December 2008, Mr Moynihan provided his report and recommendations.⁴ He recommended that legislation be introduced to increase the jurisdiction of the Small Claims Tribunal from $7,500 to $25,000, that of the Magistrates Courts to $150,000 and that of the District Court to $750,000.

In response to the Moynihan report, the State Government passed the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 earlier this year. Some parts of the Act, not including the sections increasing the respective courts’ jurisdictions, are already in force. The balance of the Act will commence on 1 November 2010.⁵

Reasons for the increases

The Moynihan report

In his report,⁶ Mr Moynihan noted that the civil monetary jurisdictional limits of the Magistrates and District Courts had not been changed since 1997. At that time, they were increased respectively from $40,000 and $200,000.

In the submissions to Mr Moynihan, there had been unanimous consensus that the existing monetary limits should be increased, although there were difference as to the amounts. For example, the Bar Association of Queensland recommended increasing that of the District Court to $750,000 and of the Magistrates Courts to $100,000. The Queensland Law Society, on the other hand, recommended increases to $300,000 and $75,000 respectively. The judges of the District Court advocated an unlimited civil jurisdiction for that court.

Mr Moynihan noted the jurisdictions of equivalent courts in other States and in the Territories. The jurisdictions of the Magistrates Courts equivalents ranged from $40,000 to $100,000,⁷ while the jurisdictions of the District Court equivalents ranged from $500,000 to unlimited.⁸

Mr Moynihan noted that the courts in Queensland are organised as an hierarchy. He accepted that one indication of the importance and complexity of a case, which may guide the plaintiff’s decision about the court in which to commence an action, is the amount of money in issue. He saw no reason to change that system, nor that indicator of appropriate jurisdiction.

In recommending the increases he did, Mr Moynihan said that he had taken into account such factors such as “the relatively high geographical accessibility to the Magistrates Courts in Queensland compared to the District and Supreme Courts, and also the changes in the professional qualification and the increasingly broader range of professional experience of appointees to the Magistrates Court [sic] over the last ten years.” He also took into account that the Uniform Civil Procedure Rules apply across the hierarchy.

He did not attempt to quantify the impact of the proposed changes on resourcing each jurisdiction. However, he noted that it was likely to “free up Supreme Court resources to deal with cases more efficiently but would increase the number of cases going to the District Court. This may have cost benefits both to the justice system and to the parties involved because it costs less to run a matter in the District and Magistrates Courts than in the Supreme Court.”

Mr Moynihan also recommended that the civil monetary limits of the District and Magistrates Courts be reviewed regularly, at least every 5 years, and adjusted to reflect the then current value of money and other relevant considerations.

The Government’s response

The State Government accepted Mr Moynihan’s recommendations on these matters, but also added its own gloss on the recommendations, particularly by increasing the lower monetary limits for a right of appeal from the Magistrates Courts to the District Court and for the right to a civil trial by jury in the District Court and by making appeals as of right from some interlocutory orders of the District Court (Mr Moynihan was not asked to, and consequently did not, consider those entitlements).

The explanations given by the Government for these changes are simply that they “align” these rights with the upper levels of the jurisdictions of the courts below. That is, the right of appeal to the District Court is limited to cases exceeding the jurisdiction of QCAT to hear minor civil disputes; and the rights to a trial by jury in, and to appeal from interlocutory judgments of, the District Court are limited to claims exceeding the jurisdiction of the Magistrates Courts. In addition, as to trial by jury, the Government said, “ While the amendment to section 75 in this Bill may have the effect of limiting a person’s right to a jury trial, in practice parties only elect to proceed by way of a jury trial in very few civil matters. In 2008 there was only one civil trial involving a jury in the District Court and in 2007 there were only two civil trials involving a jury.” ⁹

The Government’s reason for extending the right of appeal from the District Court to interlocutory judgments is that it is consistent with appeals from decisions of the Supreme Court and the Magistrates Courts to do so. The right is limited to cases exceeding the Magistrates Courts’ jurisdictional limit — the same limitation as currently applies to appeals from final judgments.

Despite Mr Moynihan’s recommendation, the Government has not legislated to provide for a 5-yearly review of the monetary jurisdictional limits of these courts, nor for any system of automatic indexation of those limits. It has not explained that omission.

These changes will apply only to new actions commencing on or after 1 November 2010. This regime seems to have been adopted in order to avoid a mass migration of cases from higher courts to lower courts, which could have (a) caused administrative chaos and substantial delays, and (b) resulted in a sudden massive increase in the workloads of the District and Magistrates Courts and a corresponding decrease in that of the Supreme Court.

The Government’s opinion, as to resourcing of the lower courts, is that the risk of any increase in the workload of the Magistrates Court is minimal, “particularly given other cost saving reforms in the [Act].” It also said that, “The impacts of the reforms will be closely monitored and subject to an evaluation. The Bill also provides that the majority of the reforms will only apply to new actions … so that the impacts will be incremental and gradual.”¹⁰

Procedural and practical aspects

As noted above, these changes do not affect any actions which are already on foot before the changes come into effect. The Jurisdiction Act has inserted sections into the amended Acts that specifically provide that the amendments “apply only to actions, matters or proceedings commenced after the commencement of this section.”¹¹

Furthermore, the amendments specifically provide to the effect that the changes in jurisdiction may not be a reason for removing proceedings from the Supreme Court to the District Court, or from the District Court to a Magistrates Court.¹²

In other words from 1 November 2010:

• a party may not apply to the Supreme Court to remove an existing action to the District Court because the amount of the claim, although greater than $250,000, is no greater than $750,000, nor may the Supreme Court make such an order of its own motion;
• similarly, an existing action in the District Court may not be removed to a Magistrates Court on the ground that the amount claimed, while more than $50,000, is less than $150,000;
• in existing actions in the District Court, it will still be necessary to apply to the Court of Appeal for leave to appeal from interlocutory decisions, whatever the amount of the claim;
• in existing actions in the District Court, it will still be possible to have trial by jury.

This means that clients, solicitors and counsel who are currently considering commencing proceedings within the increased jurisdictions of the Magistrates and District Courts will need to make a practical decision whether they would prefer their action to be heard in one or other court. If they would prefer to be in the higher court, or to have a trial by jury in the District Court, then they should ensure that any action is commenced before 1 November. On the other hand, if they would prefer to be in the lower court then, subject to any limitation period that might expire in the meantime, they may prefer to wait until 1 November to commence the action.

Of course, factors relevant to such a decision will not only be the amount in issue, but also such matters as the convenience of the location of the respective courts and the likely difference in recoverable costs in each court. Relevant to the latter criterion is also the likely amount of any judgment. For instance, it is all very well to make a claim for, say, $100,000 in a Magistrates Court, but if the amount of the judgment is likely to be $50,000 or less, then the costs that would be recovered on the Magistrates Court scale for matters under $50,000 would be likely to be considerably lower than recoverable costs in an action commenced in the District Court before 1 November.

In determining a preference for one court or another, some may also wish to consider any preference for particular magistrates or judges (particularly in regional areas).

As to the latter consideration, some concerns have been expressed about whether cases involving claims for well in excess of $50,000 will be capable of being properly dealt with in the Magistrates Courts, where (some may think) “rough justice” is often the result. Indeed, such a “concern” was expressed by the then Deputy Leader of the Opposition (Lawrence Springborg) in debate of the Bill. He said:¹³

“I have heard from members of the profession, regional law associations and members of that representative body about their worries with regard to jurisdictional competence when it comes to managing the matters that are going to be delegated from the higher jurisdictions in Queensland. If we look at the Supreme Court in particular we see that they have very specialist and defined lists which in many cases are the envy of other jurisdictions throughout Australia. That is certainly the case with regard to the commercial list of the Supreme Court. But there are very serious concerns about the capabilities and the capacities of the Magistrates Court and the District Court to deal with complex matters that are delegated to them.

The Magistrates Court in particular is attuned to dealing with matters as part of a sausage machine. It deals with many criminal justice issues very expeditiously. Magistrates are now going to be caught up in civil matters, with the monetary limit lifted from $50,000 to $150,000. The limit in the District Court is going to be lifted to three quarters of a million dollars. I think that is going to put particular pressures on the heads of those jurisdictions to make sure that their jurisdictions deal with those matters in more specialist ways. I think there are some real issues in doing that when we compare the way in which those jurisdictions deal with matters with the way in which the Supreme Court is established and functions and the level of responsibility that it has. I think that is a space that we are going to have to continue to watch, because there are some serious concerns with regard to that.”

Not all commentators share such concerns. One need only note the comments of Mr Moynihan about the qualifications and experience of more recent appointments to the Magistrates Court and the current Attorney-General’s response to the suggestion in the course of debate. He said:¹⁴

I hold no such concerns. I have the fullest confidence in the capacity of both our judges and magistrates to deal with matters listed before them and in the respective heads of jurisdiction in managing both the lists and the judicial officers to achieve the best results. With respect to the District Court, I would note … that there is a wide depth and range of experienced judges on our state’s District Court. In February this year I appointed four new judges to the district whose combined experience totalled 127 years of legal practice. All appointees have broad backgrounds with particular strengths in civil matters. The organisation of the court’s workload is a matter for the District Court. In particular, the Judge Administrator is responsible for the administration of the District Court and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the District Court. The Judge Administrator must consult with the Chief Judge in carrying out the Judge Administrator’s functions.

In recommending the increase to the civil jurisdictional limit of the Magistrates Court, Mr Moynihan had specific regard to the changes in the professional qualification and the increasingly broader range of professional experience of appointees to the Magistrates Courts over the last 10 years, during the stewardship of Labor governments.”

Discussion

The imminent changes to the jurisdiction of the District and Magistrates Courts will, over time, substantially affect the exposure of litigants in Queensland to the different courts. The Supreme Court will be limited to cases in which a very large amount is at stake. It is likely that its workload in civil matters will decrease over time as a consequence.

The workload of the Magistrates Courts is likely to increase considerably. It is to be hoped that this will not lead to delays in civil trials. It is also to be hoped that the quality of justice, both in the conduct of trials and in judgments, will not diminish having regard to the substantial workload under which Magistrates may labour. Otherwise the District Court’s appellate jurisdiction may have a substantial boost in cases.

It is not clear what the effect will be on the workload of the District Court. However, one might hope that the substantial increase in its trial jurisdiction will lead it to develop at least some specialist civil lists, such as the Supervised Cases List and the Commercial List that exist in the Supreme Court.

Insofar as all courts are concerned, it is to be hoped that the Government fulfils its promises that it will monitor closely and evaluate (one hopes regularly) the impacts of these changes. If it becomes apparent that one or other court has inadequate judicial or administrative resources to cope with the changes over time, one hopes (although perhaps without a substantial degree of confidence) that the problem will be recognised and dealt with promptly, and as often as necessary.

It is perhaps disappointing that the Government did not implement the recommendation that the legislation provide for at least 5-yearly reviews of the jurisdictional limits, with at least adjustments to reflect inflationary impacts. It seems likely that this recommendation will now be forgotten and the new limits will remain in place when persons now starting school commence to practice in the law.

Should the District Court have been given unlimited jurisdiction, concurrently with the Supreme Court, as the judges of the District Court submitted? So far as I can ascertain, that submission is not publicly available, so the judges’ reasoning cannot be analysed in this article. While the equivalent courts in Victoria and South Australia do have concurrent jurisdiction with the Supreme Courts in those States, this author questions the usefulness of having 2 separate courts with concurrent jurisdictions in civil litigation: why not either just merge them into one court, or provide for only one of them to have civil jurisdiction and, if desired, retain a separate criminal District Court for “lesser” offences? (I do not advocate this, but raise it rhetorically.)

In any case, one might expect that these changes will lead to “interesting times” in civil litigation in the next few years.

Ken Barlow

Footnotes

1. They were discussed in detail in Anand Shah & Diana Awad “Increases in the Civil Jurisdiction of the District and Magistrates Courts” (2010) 44 Hearsay http://old.hearsay.lancedev.net/index.php?option=com_content&task=view&id=912&Itemid=203.
2. These changes are effected by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) (“Jurisdiction Act”) ss 49, 51 and 54 (amending ss 68(2), 75 and 118 of the District Court of Queensland Act 1967 (Qld)) (“District Court Act”) and ss 98, 100 and 104 (amending ss 2, 4 and 45 of the Magistrates Courts Act 1921 (Qld) (“Magistrates Courts Act”). The Jurisdiction Act also effected changes to criminal jurisdiction and procedures, which are not the subject of this article.
3. The full terms of appointment are available on the website of the Department of Justice and the Attorney-General, at http://www.justice.qld.gov.au/__data/assets/pdf_file/0014/21632/review-of-the-civil-and-criminal-justice-system-terms-of-reference.pdf. They are also an appendix to the Moynihan report.
4. Queensland, Department of Justice and the Attorney-General, Review of the Civil and Criminal Justice System in Queensland (Hon Martin Moynihan AO QC), December 2008 < http://www.justice.qld.gov.au/__data/assets/pdf_file/0020/26291/Review-of-the-civil-and-criminal-justice-system-in-Queensland.pdf>. I shall refer to it as the “Moynihan report”.
5. This has been effected by proclamation published in the Government Gazette on 27 August 2010: 2010 SL No. 236. In fact, the increase to the small claims jurisdiction was effected late last year. That jurisdiction was transferred to the Queensland Civil and Administrative Tribunal (“QCAT”) with effect from the commencement of that tribunal on 1 December 2009. QCAT has jurisdiction to determine “minor civil disputes”, which are claims of up to $25,000. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, schedule 3 definitions of “minor civil dispute” and “prescribed amount”, and Queensland Civil and Administrative Tribunal Regulation 2009 (Qld) s 17.
6. The relevant section of the report, from which this part of this article derives, is Chapter 7, commencing at page 121.
7. [7] The general civil jurisdiction of the court in South Australia. In Western Australia, Tasmania and the Australian Capital Territory it was $50,000, in New South Wales $60,000, and in Victoria and the Northern Territory $100,000.
8. [8] Western Australia, $500,000, but increasing to $750,000 from 1 January 2009. In New South Wales, the general civil jurisdiction was $750,000, while in Victoria and South Australia it was unlimited — ie, coextensive with the Supreme Courts. There is no equivalent in Tasmania and the Territories.
9. [9] Explanatory Memorandum, Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 (Qld) 10- 11.
10. [10] Ibid 3. These comments applied to both the civil and the criminal reforms.
11. [11] Jurisdiction Act s 55 (inserting s 145 into the District Court Act) and s 105 (inserting s 60 into the Magistrates Courts Act).
12. [12] Jurisdiction Act ss 52 & 53, inserting new subsections 77(7) and 78(7) into the District Court Act.
13. [13] Queensland, Parliamentary Debates, Legislative Assembly, 3 August 2010, 2310 (Lawrence Springborg).
14. [14] Queensland, Parliamentary Debates, Legislative Assembly, 3 August 2010, 2331 (Hon Cameron Robert Dick, Attorney-General).