Baker v Pro Strip

Background

1. In a nutshell, the allegation of the plaintiff is that he was working pursuant to a labour hire agreement entered into with a separate entity at a site under the control of the defendant. He went to open a shed door that was, he alleges, "live" with electricity. He was knocked unconscious, thrown to the floor, and alleges that he has suffered ongoing physical and psychological injuries as a result.
2. The claim against the defendant is accordingly brought pursuant to the Civil Liability Act 2002 (NSW), and not the Workers Compensation Act 1987 (NSW). It features claims for non-economic loss, past and future out-of-pocket expenses, past economic loss and past loss of superannuation, future economic loss and future loss of superannuation, and past and future domestic assistance.
3. The simple basis for the application is that his claim is now in the sum of $1.5 million, exactly double the jurisdictional limit of the District Court that the parties agreed before me applies in a claim of this kind. The plaintiff simply asserts, to use the language of the section, that the amount that he is to be awarded, if he is successful, "is likely to exceed the jurisdictional limit" of that Court.

Submissions for the defendant

1. In my respectful opinion, many of the points made by counsel for the defendant in resistance to the transfer have force. Some of them focused directly upon the section itself; others upon s 56 of the CPA, which is certainly relevant to the question: see Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337. In a nutshell, they were as follows.
2. First, it is regrettable that the application for transfer came before me on Tuesday 21 April 2020, when the matter is listed for hearing in the District Court on Monday 27 April 2020.
3. Secondly, in light of the current public health crisis, if the matter is transferred to this Court, it is quite unclear when it may actually be able to be heard.
4. Thirdly, despite the fact that there was no pressure arising from a limitation period, proceedings were commenced in the District Court at a point when, even on the case for the plaintiff, the quantum of damages actually to be sought was self-evidently not clear.
5. Fourthly, it was in September 2018 that the expert evidence of the plaintiff was fully filed and served. And yet many months were permitted to pass without the plaintiff bringing this disruptive application asserting that the District Court is incapable of fully doing justice to the plaintiff.
6. Fifthly, the explanation proffered in affidavit evidence as to why proceedings were brought in the District Court - namely, because liability was more contestable at that stage, in the absence of certain expert evidence for the plaintiff - does not, as a matter of logic, explain why the quantum to be claimed was assertedly mistaken for so long.
7. Sixthly, even at the late stage of the hearing before me, parts of the documents founding the claim of the plaintiff needed to be corrected "on the run". For example, the operative amended statement of claim of 5 June 2018 mistakes the date of the alleged accident - surely a fundamental question of fact that must be pleaded correctly - by a full year.
8. Seventhly, an analysis of some aspects of the documentary expert evidence about damages may lead one to query whether it is entirely soundly based. For example, counsel took me to some of the reports to suggest that the psychological position of the plaintiff is not as injured as claimed; nor, it was submitted, is any restriction on day-to-day living. He also suggested that the evidence does not support the assertion of the plaintiff as to his loss of future earning capacity.
9. Eighthly, it is possible that any liability and consequent damages of the defendant may be separately reduced, if liability on the part of the labour hire company is notionally established.
10. In short, the overarching submission of counsel for the defendant was that, bearing in mind the necessity for proceedings to be determined justly, quickly, and cheaply, I would not be satisfied that the proceedings should be transferred, primarily because I simply would not be satisfied that the plaintiff would indeed be recompensed above the jurisdictional limit of the lower court.

Determination

1. As I have said, those points are not without some force. To be weighed against them are the following factors, stated in general ascending order of importance.
2. First, the evidence placed before me as to any possible notional liability on the part of the labour hire company is either negligible or non-existent. As a result, the thesis of possible reduction as against the defendant plays little role in my determination.
3. Secondly, speaking generally, a judge should be slow to insist upon legal work undertaken by human beings being performed absolutely perfectly. And he or she should be even slower, I think, to visit the consequences of any such failing upon the client.
4. Thirdly, on the hearing of a summons such as this, which features a plethora of documents setting out contrasting expert opinions about such matters as musculoskeletal injury, rheumatology, psychiatry and psychology, and occupational therapy, but in which there has of necessity been no cross-examination whatsoever, it is impossible for me to come to any concluded view about seeming inadequacies in the claim for the plaintiff. What is required is an assessment of "impression", albeit one founded upon the evidence: Johnstone v State of New South Wales [2006] NSWCA 105.
5. Fourthly, the statutory phrase "is likely to exceed" does not require satisfaction on the balance of probabilities that the plaintiff if successful will be recompensed in an amount greater than the jurisdictional limit: see Tauri v Janlin Circuses at [7]. What is required is an assessment of whether there is a "real chance" of that occurring, or perhaps, to adopt a synonymous phrase, a significant possibility of it.
6. Fifthly, although the impugning points about particular aspects of the expert evidence made by counsel for the defendant were not without cogency, it is possible that one could assess some of them as perhaps being more towards the edges of the quantum of the claim, rather than at its centre.
7. Sixthly, in any event, in order to succeed on this application the plaintiff need not persuade me that there is a real chance that he will be compensated in the sum of $1.5 million, or anything approaching it. Injustice would be occasioned to the plaintiff if he were found to be entitled in the District Court to one single dollar beyond $750,000. That is a very marked "discount" upon the current claim, and in a sense builds in a significant margin for error in terms of assessing its entirety.
8. Seventhly, apart from the adverse logistics of the inevitable adjournment of the hearing of the matter, counsel for the defendant did not point to any other disadvantage to his client in the matter being heard in this Court.
9. Eighthly and finally, as I have remarked in other judgments (see Pelka v Woolworths Limited [2016] NSWSC 1312 and Marincic v State of New South Wales [2017] NSWSC 272), s 56 of the CPA has a role to play separate from that upon which counsel for the defendant relied. The prospect of procedural matters giving rise to a possibility that a plaintiff could be left with "a right without a remedy" is, I think, a very important consideration in an application such as these. The injustice of such an outcome speaks for itself. And in oral submissions, counsel for the defendant with appropriate frankness did not seek to gainsay its importance.

Conclusion

1. In short, I am satisfied that there is a real chance that the claim of the plaintiff may exceed the jurisdictional limit to which it is currently subject. In those circumstances, I cannot countenance the possibility of him being disadvantaged by what is, at the end of the day, a procedural and not substantive question. For that reason, I will make the order transferring the matter, effective forthwith, with the practical result that the hearing in the District Court is of course vacated.

Costs

1. As for the costs of this interlocutory summons, counsel for the plaintiff did not seek costs even if successful. He merely submitted that costs should be in the cause.
2. Counsel for the defendant submitted that, even if he were to fail in this dispute, his client should nevertheless have its costs, because of the matters that I have set out above. His ancillary position was the same as the primary position of the plaintiff: that costs should be in the cause.
3. Determining this discrete question: some aspects of the prosecution of the matter have been less than perfect. On the other hand, the simple fact is that the plaintiff succeeded in obtaining the order he sought by way of his summons. The measured submission of counsel for the plaintiff is correct: he should not have his costs despite his success before me; they should simply be in the cause.

Orders

1. The following orders will be entered immediately in Chambers: 1. Pursuant to s 140(3)(b)(i) of the Civil Procedure Act 2005, proceedings number 2017/00363043 issued in the District Court of NSW at Parramatta are transferred to the Supreme Court of NSW at Sydney. 2. Costs of the proceedings before me are costs in the cause.

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