Cubrilo v Veljovic

EX TeMPORE Judgment (REVISED)

1. The plaintiff moves by summons for the transfer of proceedings pending in the District Court of New South Wales to this Court pursuant to the provisions of s 140 Civil Procedure Act 2005 (NSW). The case in the District Court is a personal injuries case and s 140(3) imposes a condition upon the exercise of the very general discretion conferred by s 140(1).
2. Personal injury proceedings, "are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied", relevantly for present purposes that the amount to be awarded to the plaintiff if successful is likely to exceed the jurisdictional limit of the District Court. Currently, the District Court's jurisdictional limit is $750,000, the defendant, having made it clear on 17 October 2014 that it objected to what might be referred to as the automatic partial increase of the District Court's monetary jurisdiction applying in this case.
3. Learned counsel on each side has referred me to relevant authorities in relation to the meaning of the word 'likely' in this context. Reliance was placed upon the commentary in Ritchie's Uniform Civil Procedure of New South Wales, vol 1,at p 2884, s 140.10, particularly the decision of Bellew J in Younes v QIC Limited (t/as Westpoint Blacktown) [2012] NSWSC 451. His Honour referred to the process of deciding "likelihood" in this context as being impressionistic. It has to be borne in mind that in the exercise of this jurisdiction a decision has to be made in a more or less summary fashion.
4. I have been favoured with evidence from the plaintiff and from the defendant in relation to the medical case. I do not have the pleadings in the District Court but the cause of action relied upon by the plaintiff is slipping down some wet, outside stairs in residential premises. The stairs, as I understand it, from the medical history were wet because of rain water. When injured the plaintiff was fully employed conducting her own company as a private investigator, preparing factual investigation reports for use in litigation. Her notice of assessment for 2011 financial year, which is the last full financial year before the accident, showed that she earnt about $95,000 net in that work.
5. As Mr Wilson of counsel properly points out, the evidence tendered in the plaintiff's case before me indicates that although the plaintiff has many complaints of injury to many parts of her body, they largely consists of soft tissue complaints or perhaps, as he accepted, in answer to a question from me, the aggravation of pre-existing degenerative changes in various parts of the body. There is one exception to that, on some of the evidence anyway there seems to be the suggestion of a fracture to the sacrum. That is likely to be, I would think, a frank injury rather than a pre-existing condition. This is relevant because on the plaintiff's case, there are neurological difficulties arising, which Dr Breslin accepts might be of some significance.
6. The plaintiff has the support of Dr Mastroianni and Dr Dixon in relation to her orthopaedic complaints. She also has support from Dr Stephenson, that she has a psychiatric condition of a reactive depressive type, consequential to her physical injuries and disabilities. And for what it is worth, because it may not be legally relevant, if Dr Stephenson's opinion is accepted at any trial, the degree of permanent impairment resulting from that psychiatric injury is 22%. This is a Civil Liability Act 2005 (NSW) case and this consideration is perhaps not to the point.
7. On the other hand, the defendant has an equally impressive body of medical evidence which denies any significant injury to the plaintiff. Dr David Maxwell, an orthopaedic surgeon, effectively says that there is nothing wrong with the plaintiff. He raises the spectre, if I read him correctly, of some degree of malingering in as much as he says that the plaintiff's disabilities are overstated and he can find no pathological condition which would render her disabled. He refers to psycho-social factors such as "secondary gain". He refers to the fact that she performed work for plaintiffs' solicitors.
8. The psychiatrist engaged on behalf of the defendant, Dr George Haralambous, says there is no recognisable psychiatric condition consequent upon any physical injury. Associate Professor Farnsworth, an urologist, accepts that there is some degree of day time incontinence but he regards it as minor, and in any event unrelated to the injury sustained on 9 January 2012. Such a complete diversity of medical opinion is not unusual in personal injuries litigation.
9. Returning to the discussion of likeliness; it does not mean more probably than not; and it requires the Court to make, as I have said, in a summary way, an assessment of whether there is a real chance of the plaintiff getting more than $750,000 in damages, if successful. That must depend upon the prospect that her favourable evidence will be accepted in preference to the defendant's evidence. Now in that regard, I think all one can say is that there is material before me which persuades me that there will be evidence available at the trial which, if accepted, would justify an award of damages in excess of $750,000.
10. Exhibit C to the affidavit of Mr Frangipane is a schedule of damages setting out the plaintiff's case. It is not evidence, but moreover, I appreciate that experienced lawyers can massage figures to produce results which favour one side than the other. However, having regard to the plaintiff's level of pre-injury earnings, the type of complaints she is making, and allowing for the fact that her own case might admit of some prospect of a return to light part-time work, I am satisfied that if her case is accepted by a judge, she will obtain more than $750,000. Naturally, if the defendant's case is accepted, she will obtain a result, if she proves negligence, which will be well and truly accommodated by the District Court's jurisdiction.
11. I turn now to what was referred to in argument as the general discretionary factors. The main discretionary factor involves the submission put by Mr Wilson that there has been a lack of forensic diligence in making this application and moreover there has been no attempt to put forward a satisfactory explanation from the plaintiff as to why this application is being made at this late stage. The significant facts are, as I have said, that the defendant made it clear as long ago as October 2014 that it did not consent to an extension of jurisdiction. With that knowledge the plaintiff's solicitors set the matter down for hearing in the District Court on 15 April 2015. It was not until February 2015 after an informal settlement conference that failed to resolve the matter, that the issue of extended jurisdiction was revisited. I should interpolate that when the defendant's solicitors wrote to say that they would not "consent to jurisdiction", there was a telephone call between the defendant's solicitor and the solicitor handling the matter for the plaintiff during which a perhaps unbecomingly nonchalant, off-the-cuff remark was made about the plaintiff being happy with $750,000. That comment may well have been inappropriate. I have no doubt it was made without instructions and to my mind it takes the exercise of my discretion nowhere.
12. The other matters relied upon by Mr Wilson are serious. But it seems to me, as I was told from the bar table by agreement, that what happened, and what no doubt so often happens, is that counsel briefed in the matter advised on 23 February 2015 that in his view there was a real possibility that the case could exceed the jurisdictional limit of $750,000. Counsel's opinion, of course, is neither here nor there. But that explains the flurry of activity in terms of revisiting this issue. On that very day the plaintiff's solicitor wrote to the solicitors for the defendant asking them whether they had a change of heart about the $750,000, and perhaps one could say that the answer to that was all but a foregone conclusion given the clarity with which their attitude was expressed back in October. It was not until 23 March that that was made clear, if it had to be. Then, belatedly perhaps but nonetheless with some celerity, this summons was filed and served within a few days.
13. I accept that case management considerations are important. I accept that the defendant will have wasted costs because of this late application. I accept that wasted costs orders are not always a panacea. However, it seems to me that despite the great importance of case management considerations they are but servants of the interests of justice and of themselves they do not justify denying the plaintiff who may have the right to damages in excess of the District Court's jurisdiction to pursue that right in the appropriate case; the interests of justice must always be paramount.
14. I will allow myself to comment that by analogy with the Limitation Act 1969 (NSW) cases, as discussed by Handley JA in State of New South Wales v Donnelley [2004] NSWCA 133 (at [3]), plaintiffs who come before this Court seeking this type of relief bear an onus to put all their cards on the table, to make full disclosure as to why an application is being made, in anyone's terms, at the heel of the hunt. Unfortunately, late applications are not rare. I think the lateness is explained by two factors which are just acceptable. The first is that the solicitor who made the nonchalant comment has left the firm and is no longer conducting the matter and the second is that counsel gave advice on 23 February which prompted the change of tack.
15. If there is any failure of proper standards, and I am not saying that there is, that ought not to be visited upon the plaintiff. If the explanation is that late consideration was given to the significance of the jurisdictional limit, that explains why the plaintiff did nothing earlier. I stress I am not making any findings about those matters, other than to say I think the explanation is acceptable and to that extent, satisfactory.
16. For these reasons: 1. Under s 140 of the Civil Procedure Act 2005 (NSW), the District Court proceedings number 2013/246435 are transferred to this Court. 2. The pleadings in the District Court will stand as pleadings in this Court.
17. Mr Wilson applies for costs of this application and for the costs thrown away. Mr Warr opposes that and says that costs should be in the cause. Given the lateness of the application and the fact that a hearing date was taken in the District Court at a time when serious consideration ought to have been given to whether extended jurisdiction was appropriate, especially in light of the defendant's instructing solicitor's letter of 17 October 2014, I regard this case as one calling for the application of the so-called "indulgence rule". And in that regard, given the important case management considerations that Mr Wilson referred to in the course of the argument, I think it appropriate that the defendant have its costs of this application and the costs thrown away by reason of the late adjournment in the District Court even though, I acknowledge, the defendant did not "consent to jurisdiction" and to some extent therefore, is the author of their own misfortune. Moreover, as I remarked to Mr Wilson, it is very rare, in my experience, for the defendants to consent jurisdiction, except in former times when it was necessary in motor vehicle cases. Nonetheless, I think the late application has put the defendant at an unfair disadvantage so far as costs are concerned.
18. I order the plaintiff to pay the defendant's costs of this application and of the costs thrown away by reason of the need to adjourn the District Court proceedings.
19. I wish to make an additional comment, and that is to say that given the arguments advanced on behalf of the defendant and given my comments and reasons for judgment, I would have some concern if the costs involved were to be visited upon the plaintiff personally without further evidence being placed before the Court.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2015