By way of summons filed in this Court on 6 September 2016, Ms Zuzanna Pelka (the plaintiff) seeks transfer of proceedings commenced in the District Court of New South Wales (by way of a statement of claim filed on 16 December 2015) to this Court. That application is opposed by Woolworths Limited (the defendant). The matter came before me in the Duty List yesterday, and I indicated to the parties that I would endeavour to provide my judgment today.
Background
The background may be shortly stated. In her statement of claim, the plaintiff asserts that, whilst shopping in a supermarket of the defendant, she slipped and fell, fracturing her left kneecap. Her claim is that her fall was caused by the presence of liquid on the floor of the supermarket negligently left there by the defendant. That assertion is rejected in a defence filed for the defendant in the District Court on 8 April 2016.
The claim of the plaintiff is that her fractured knee has had a number of secondary effects. They include: a marked limp that has led to chronic back pain; injury in the form of bursitis (a disease of inflammation) to her hip; and bodily disfigurement in the form of surgical scarring. Although it has been made clear on her behalf that she will not be claiming past or future economic loss, her claim is that her injuries will call for very substantial care in the future.
The defendant does not dispute that the plaintiff suffered the injury. However, as for damages, it is disputed that she will require substantial care in the years ahead. Indeed, the position of the defendant is that many of the asserted deficits experienced by the plaintiff are to be sheeted home to a combination of pre-existing physical problems, and emotional and mental issues.
A report from Glen Dwyer of Evidex was placed before me dated 20 June 2016 on behalf of the plaintiff. In a nutshell, it is expert evidence that supports a claim for past care, assistance and equipment; future care and assistance; out-of-pocket expenses; and additional requirements in the total sum of $840,350, including the lesser sum of $736,625 for future care and assistance.
In stark contrast to that, the defendant has placed before me a report suggesting that the defendant reasonably requires virtually no future care arising from the injury. It can be seen therefore that the divergence between the experts retained by each party is in the sum of many hundreds of thousands of dollars.
To complete the background, in its defence of 8 April 2016, the defendant made it clear that any expansion of the jurisdictional limit of the District Court would not be consented to.
Relevant legislation
Section 140 of the Civil Procedure Act 2005 (NSW) (the Act) is relevantly as follows:
140 Transfer of proceedings to higher court
(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.
…
(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or a workplace injury damages claim:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.
…
Section 56 of the Act is relevantly as follows:
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
…
Submissions of the plaintiff
Counsel for the plaintiff submitted that she has placed before me evidence that the plaintiff could be entitled to a sum beyond the jurisdictional limit of the District Court (that being $750,000). He submitted that the lack of consent to enlargement of that limit, explicitly indicated in the defence and maintained before me, means that it is possible that the plaintiff could be adjudged entitled to more than $750,000, and yet would not receive an order in that amount in the lower court.
He submitted that it is quite true that s 140(3)(b)(i) of the Act, illuminated by authorities such as Johnstone v State of New South Wales [2006] NSWCA 105 and Lazare v City of Sydney Council [2015] NSWSC 1546, calls for a satisfaction on my part that the award of damages, if the plaintiff is successful, is likely to exceed the jurisdictional limit.
But he submitted that interpretation of the central section, in the circumstances of this case, must give significant weight to what is said in s 56 of the Act with regard to overriding interpretation. That is for the simple reason that, if I were to adopt the approach contended for by the defendant, it is possible that a litigant, for highly procedural reasons, could be denied justice with regard to a valid claim, in terms of quantum of damages.
Submissions of the defendant
The solicitor for the defendant made it clear that consent to the enlargement of the jurisdiction of the District Court will not be forthcoming, and that the application for transfer to this Court was opposed. She pointed to the statutory test, and emphasised that Parliament has chosen to use the phrase "likely to exceed", rather than a phrase such as "may exceed" or "could perhaps exceed". She invited my attention to the fact that it was the solicitors for the plaintiff who decided to commence proceedings in the District Court in December 2015, although she accepted that the report from Evidex is dated some months after that, namely June 2016.
In response to my query during discussion as to whether one should interpret an Act of Parliament as possibly leading to the result that a litigant would be denied a remedy (in terms of quantum) with regard to a soundly-based cause of action, she submitted that the words of the central provision, as interpreted by judgments of this Court, speak for themselves.
Determination
Turning to my determination, the authorities to which I was referred do not call for explicit or certain satisfaction on my part that the plaintiff will succeed in obtaining damages above the jurisdictional limit of the District Court. To the contrary, the test has been expressed in Johnstone v State of New South Wales at [22] as calling upon a judge "not to engage in an exercise of complete assessment, but… to arrive at a likelihood, and of necessity… to do so to an extent as a matter of impression".
It was further expressed in Lazare v City of Sydney Council at [42] as:
In determining the likely award of damages, the approach to be taken is an impressionistic one. I am not required to engage in a preliminary trial of the matter and, in particular, I am not required to engage in an individual assessment of each head of damage under which a claim is made.
It is true that Parliament has chosen to adopt the phrase that it has in s 140(3)(b)(i) of the Act. But interpretation of that phrase, in the circumstances of this case, must surely be informed by the real possibility of a positive injustice arising to the plaintiff if she is unable to have the matter transferred. I think that, in the circumstances here, the command by Parliament contained in s 56 of the Act as to how I should interpret all of the provisions of that Act has a very real role to play.
Of course, it is impossible for me, in a concisely argued matter in the Duty List, to determine where the truth is to be found in the controversy between the experts. But there is nothing to suggest that the report asserting that the plaintiff is entitled to damages greater than the jurisdictional limit of the District Court is inherently implausible, or lacking in credibility, or internally incoherent.
And speaking more generally, I cannot accept, bearing especially in mind the fact that the report from Evidex was obtained some months after the proceedings were commenced in the District Court, that the plaintiff should potentially be shut out from being properly recompensed by way of damages as a result of the position adopted by the defendant with regard to procedural matters.
In short, reading the central provision in accordance with s 56 of the Act - and giving primacy to the just resolution of the proceedings - I am satisfied that the test has been made out, and that I should transfer the matter to this Court.
If I am wrong in the entirety of the foregoing analysis, I would nevertheless transfer the matter pursuant to s 140(3)(b)(ii) of the Act, the "sufficient reason" for doing so being the interests of justice arising from the circumstances that I have explained.
Costs
As for costs, I considered in Chambers whether or not costs should be ordered against the unsuccessful defendant to the motion, in light of the combined effect of its stance in the District Court and its stance before me. On reflection, however, bearing in mind that the plaintiff sought only that costs be in the cause, and that that is the usual order as to costs in such matters, I am content to make that order.
Orders
I make the following orders:
1. Proceedings No 2015/368765 in the District Court of New South Wales are transferred to the Supreme Court of New South Wales.
2. The pleadings in proceedings No 2015/368765 in the District Court of New South Wales stand as pleadings in the Supreme Court of New South Wales proceedings.
3. Costs of the proceedings before me are costs in the cause.
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Decision last updated: 16 September 2016