09 Oct 2018

Uncertain Times For The Commercial Jurisdiction Of The District Court

Scott Goodman SC


1. Section 44(1)(a) of the District Court Act 1973 (NSW) confers jurisdiction upon the District Court to determine matters which, if brought in the Supreme Court, would be assigned to the Common Law Division of the Supreme Court.

2. In 2007, the High Court of Australia determined that consideration of whether a proceeding would have been assigned to the Common Law Division requires analysis of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules as they stood at 2 February 1998.

3. A particular issue has recently surfaced with respect to the operation of Part 14 Rule 2(1)(a), which as at 2 February 1998 assigned to the Commercial Division proceedings “arising out of commercial transactions”. This rule has been interpreted in a manner which excludes many commercial cases from the jurisdiction of the District Court.

4. The analysis below considers the jurisdiction conferred by s 44(1)(a), its recent interpretation by the Supreme and District Courts, and some thoughts as to the future.

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