Hua Shan v Fairfield City Council & Anor

Supreme Court of NSW|2020-06-01|Before: Button J

Solicitors: Law Partners Compensation Lawyers (Plaintiff) Gillis Delaney Lawyers (First Defendant) Lee Legal Group (Second Defendant) File Number(s): 2019/00373816

Introduction

This is an application for review of a decision of a Registrar, placed before me by way of motion pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW). It pertains to an application for a transfer of proceedings from the District Court to this Court, pursuant to s 140 of the Civil Procedure Act 2005 (NSW). What is being reviewed is a refusal by the learned Registrar, who declined to transfer the matter.
Without delving deeply into the jurisprudence of the nature of such a review, I think it can be very baldly summarised as not requiring identification of error at first instance, but calling for a degree of caution, especially if what is being reviewed is a procedural or interlocutory step: see Tomko v Palasty (No 2) [2007] NSWCA 369.
The position of each of the defendants, as helpfully explained orally (and each of them did me the courtesy of providing a brief written submission to that effect as well), is to neither consent to nor oppose the motion, but to submit that it is a matter for my satisfaction. They also accept that the correct costs order in these circumstances is that costs be in the cause.

Background

The background can be shortly stated. The claim of the plaintiff is that she worked as a cleaner for a city council within the metropolitan area of Sydney. That instrumentality is the first defendant, and I will subsequently refer to it simply as the Council.
The claim is that she was harassed by a since-dismissed employee of the Council. In a nutshell, the claim is that the Council should have forestalled that happening, and had a system to stop it happening.
She left her employment in May 2015. The harassment is alleged to have occurred for many months; indeed, a couple of years, I believe, before that.
A statement of claim was filed in the District Court in September 2018. At that stage, it was not clear whether proceedings could be brought against her true employer, that being the second defendant, to which I shall subsequently refer as the labour hire company. That is because it was not then clear whether she had suffered more than 15% whole person impairment ("WPI"). It is well known that there is a bright line cut-off point in the Workers Compensation Act 1987 (NSW) below which such proceedings are not available or, at least, are far less available.
For that reason, it was felt that it was appropriate to commence the proceedings. After all, by that stage, it was three and a half years or thereabouts after she had left working with the Council. On the other hand, it was by no means clear that damages could encompass any claim against the labour hire company.
Subsequently, a determination was made that the plaintiff had suffered 15% WPI, indeed substantially more than that, 24%. Thereafter, as one would expect, a decision was made to join the second defendant to the proceedings. But that meant, on the thesis of counsel for the plaintiff, that the claim expanded. Now it is asserted that the claim will be well beyond the jurisdictional limit of the District Court, $750,000; indeed, the claim as it currently stands is for over $1.1 million.

Decision of the Registrar

That is the thesis that was placed before the Registrar. The Registrar, with respect completely understandably, was concerned about the role of s 56 of the Civil Procedure Act and, in particular, about the inevitable delay that will be occasioned by transfer. That is because a matter that was approaching a hearing in the District Court will now, to some degree, surely go to the "bottom of the list", in terms of hearings in this Court.
The Registrar also felt that the psychological and psychiatric injury claimed really is not likely to go beyond $750,000. Bound up in that was the proposition that, in terms of the need for domestic care, the evidence was rather scant.
In a nutshell, the Registrar was not satisfied, in accordance with statute, that it was likely that the claim (not just with regard to liability of course but also damages) would go beyond the jurisdictional limit of the District Court and was also, as part of the evaluative judgment, troubled about delay. Accordingly, the application was dismissed.
That is the judgment that I am asked to review. As I have discussed, I do not believe I am called upon to identify error in that judgment. As well as that, further evidence that was not before the Registrar has been placed before me in any event.

Discussion

I think that the issue here is an assessment on my part in a broad sense of the likelihood of this claim succeeding in going beyond the District Court's jurisdiction. Patently, one would reject out of hand, as a matter of theory and practice, the idea that the work of the Supreme Court would be clogged up by matters that, for some reason or other, are sought to be either commenced here or transferred here when it is perfectly clear that a lower Court is ready, willing and able to deal with the matter, and to do justice in the matter.
I understand that and I approach s 140 of the Civil Procedure Act giving full weight to that intention of Parliament. Nevertheless, I do believe that there is a compelling issue here of the possibility of a litigant being left with an established "right without a remedy". In particular, I think it is very troubling to posit: a person who has a claim that extends beyond the jurisdiction of a particular Court; who tries to, as it were, move beyond that Court; is prohibited from doing so; and, at the end of the day, the jurisdiction of that Court cannot satisfy the established claim. Thereafter, that litigant is left literally out of pocket to the tune of perhaps tens of thousands, even hundreds of thousands of dollars.
With regard to an application of this kind, I confess that I approach my task very much informed by that concern. And I respectfully believe that Parliament cannot have intended judges to forget that unjust possibility, in determining an application of this kind.
A reasonable amount of evidence has been placed before me. As is necessary, the plaintiff has placed before me some, if not all, of the expert reports that she relies upon. As well as that, a countervailing report has been placed before me on behalf of the Council. It suggests in a nutshell a degree of caution with regard to the possibility of a pre-existing condition, the possibility of questions of causation being important; and the possibility of this adverse reaction of the plaintiff not being able to be sheeted home to a recognised psychological or psychiatric condition.
I think that all of those possibilities are perfectly valid. Having said that, it is to be recalled that this application is not bitterly opposed by either defendant. Furthermore, I do not believe it is being alleged that the plaintiff - who has spoken of really severe injury, in terms of a major depressive disorder which is allegedly very debilitating - is malingering or lying. Nor is it suggested that any of the experts she has qualified are incompetent, or careless, or lacking in credibility. This is not that kind of case.
As I have said, the Registrar was troubled about allegedly scant evidence as to the need for domestic care; but there is now evidence from at least one family member as to that. She is not impugned as someone who is lying, or exaggerating grossly.
Also, as I said to counsel during our very helpful discussion, I think that psychiatric conditions of their nature are not amenable to objective classification, as to the extent of the injury, in the way that, for example, an allegedly sprained finger can be objectively, patently, physically, contrasted with a broken spine. One knows from experience that it is not easy to say with certainty: "Well, this alleged stimulus is not that bad allegedly and, therefore, it cannot be the cause of this very profound psychiatric trauma." In short, I think that great caution needs to be adopted by me in that regard, especially, as I say, in an impressionistic exercise such as this.
As I have said, the basal legislation speaks of likelihood of success. That does not mean, to my understanding, that I need to be satisfied that there is an overwhelming probability that the jurisdictional threshold will be passed. Indeed, I do not believe it requires satisfaction of a 51% possibility. All it requires is a recognition of a significant possibility of that injustice occurring: see Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337.
As well as that, as I have said, I do not believe that this review requires identification of some patent error in the reasons of the Registrar. It is largely a de novo consideration of mine.
Additionally, I do not think it is unimportant that it has been explained to me that if, in truth, this application, with the benefit of hindsight is shown to be too optimistic, well then, there can be costs protection afforded to the defendants in a matter such as this. That can occur if there are truly unnecessary costs occasioned to them by the transfer, even if the plaintiff enjoys substantial success. I think that is also an important aspect of the approach I should take.
To recap: there is no suggestion here of malingering, incompetence on the part of doctors, lying on the part of family members of the plaintiff. There is also some more detailed evidence that was not before the Registrar. As I have also said, psychiatric damage is not something that one can look at under a microscope, or look at with an x-ray, or see with one's own eyes. Self-evidently, it is nebulous, amorphous, open to reasonable differences of opinion.
In my opinion, having formed an impression of the evidence and informed by the guarded approach that I have spoken of more than once in seeking to avoid injustice, I am satisfied that there is a likelihood of the jurisdictional limit of the District Court being breached.
I should finally add that it is important, I think, that this claim is not for, let us say, $780,000. The claim goes well beyond the jurisdictional limit of the District Court which, as it were, builds in a margin for error in terms of my cautious approach.

Conclusion

I think that, in all the circumstances, the orders sought in the summons should be made.
As well as that, I am amply satisfied that, with respect to all three parties, that the correct costs order is that costs be costs in the cause.

Orders

For the foregoing reasons I make the following orders: 1. The decision of Registrar Jones of 9 March 2020 in this matter is set aside. 2. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), District Court proceedings case number 2018/387903 are transferred to the Supreme Court of New South Wales. 3. The costs of the summons, including the costs of the proceedings before me, are costs in the cause. 4. The matter is listed before the Common Law Registrar for directions at 9am on Monday 15 June 2020.

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: 02 June 2020

At a glance

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