kea93004J

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 80 of 1988

BETWEEN:
TERRITORY INSURANCE OFFICE
Plaintiff
AND:
TUEVON PTY. LTD (t/a HERTZ RENT-A-CAR)
Defendant

CORAM:	KEARNEY J

REASONS FOR DECISION
(Delivered 15 February 1993)

I rule today on the plaintiff's application that these proceedings be transferred to the Local Court pursuant to sl6(1) of the Supreme Court Act, the costs of the application to be costs in the cause.	The application by Summons was filed on 8 February 1993 and listed for hearing on 12 February.	This application is similar to the same plaintiff's application of 8 February 1993 in proceedings No.79 of 1988, Territory Insurance Office v Mercia Pty.
Ltd., on which I ruled earlier today.
A preliminary matter
I deal first with a preliminary matter raised by Mr Preston of counsel for the defendant when the application was called on.	It arises from the wording of s16(1) which provides, as far as material:-
"(1).	A party - - may apply - - for the proceeding to be transferred to the

Local Court if the matters for determination - - are within the jurisdiction of the Local Court at the time the application is made." (emphasis mine)
Mr Preston of counsel for the defendant submitted that as at 8 February (and 12 February) .1993, the amount claimed by the plaintiff in its Writ ($41,692.86) was outside the jurisdictional limit of the Local Court ($40,000) accordingly, s16(1) of the Act rendered the plaintiff incompetent to apply to transfer the proceedings until that was rectified.
Para4 of the supporting affidavit of 3 February 1993 of Ms Scicluna, counsel for the plaintiff, affirmed:-
114.	THAT	in view of the costs of litigating an action in the Supreme Court and the quantum of the Plaintiff's claim, the Plaintiff has elected to forego its claim as far as it is in excess of the Local Court's jurisdictional limit and to have these proceedings transferred to the Local Court for determination."

As to this, Mr Preston submitted that sl6(1) required that the election by the plaintiff to forego that part of its claim in excess of the jurisdictional limit of the Local Court, be formally effected by an appropriate amendment to the pleadings which govern the "matters for determination", prior to the plaintiff applying to transfer.
In the light of these submissions, Ms Scicluna undertook to amend the pleadings accordingly; this was acceptable to Mr Preston.	I noted the undertaking and ordered pursuant to r36.0l(l) of the Supreme Court Rules that the Writ be amended so as to reduce the claim to
$40,000, with costs, the order to take effect instanter.	I then permitted the plaintiff to apply orally to transfer the proceedings to the Local Court, without further notice, pursuant to r46.02(1).	In the result, the jurisdictional· issue under s16(1) had been rectified before the oral application was made; see r46.02(3).
The oral application
Ms Scicluna of counsel for the plaintiff relied on

her affidavit of 3 February 1983; para4 is set out at p2, while paras2 and 3 affirm:-
112.	THAT proceedings were issued out of the Supreme Court at Alice Springs on 14th July 1988 claiming the sum of $42,692,86 plus interest and
costs.
3.	THAT the jurisdiction of the Local Court was increased to $40,000.00 as of 1st January 1991.

Para2 of that affidavit should read "$41,692.86", and not
11$42,69 2.86".
Ms Scicluna also made an oral application that the costs of the proceedings to the date of transfer be on the Supreme Court scale.
Mr Preston's submissions in relation to this application were the same as he had made on the similar application of 8 February in proceedings No.79 of 1988 (supra).
Background
The plaintiff issued the Writ herein on 14 July 1988 claiming it had entered into an agreement on 1 October 1982 with the defendant to provide motor vehicle insurance over the defendant's fleet of motor vehicles, in consideration of certain insurance premiums; it claimed
$41,692.86 for premiums allegedly not paid by the defendant for the period 1 June 1985 to 1 March 1986.
The defendant entered an Appearance on 25 July 1988, sought particulars of the claim on 8 August, and filed an Amended Defence on 17 November 1989.
At callovers on 6 July and 28 August 1990 the proceedings were marked "current".
On 1 December 1992 the plaintiff applied to
transfer the proceedings to the Local Court.	This application was struck out with costs, presumably for failure to comply with r3.05 of the Supreme Court Rules. The necessary "Notice of Intention to Proceed" was filed on
3 December.

At a callover on 5 February 1993 the proceedings were again marked "current", and I was informed of the present application.
Conclusions
For the reasons set out at p3 of the ruling of
15 February 1993 in Territory Insurance Office v Mercia Pty Ltd I consider that the question of the costs of the proceedings in this Court to 1 January 1991 should be left to the Local Court.	Accordingly, I make the following orders:-
By consent:-
Proceedings No.80 of 1988 are hereby transferred to the Local Court, pursuant to sl6(1) of the Supreme Court Act, on the oral application made this day.
The costs of this application are to be costs in the cause.
The quantum of the costs of these proceedings to 1 January 1991, and of the oral application made this day, are to be determined by the Local Court in its discretion.