71 NSWLR 471
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Source
Original judgment source is linked above.
Catchwords
71 NSWLR 471
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Judgment (3 paragraphs)
[1]
Solicitors: Hall & Willcox (Plaintiff)
Slater & Gordon (Defendant)
Astridge & Murray (Cross Defendant)
File Number(s): 2016/36948
[2]
EX TeMPORE Judgment (REVISED)
This is an application under s 140 of the Civil Procedure Act 2005 (NSW) to transfer proceedings currently pending in the District Court of New South Wales to this Court.
The proceedings are a claim for work injury damages brought by Ms Nasralla against her direct employer Randstad Pty Ltd ("Randstad") which is the plaintiff in these proceedings for transfer.
The parties in the District Court include a cross-defendant, Unilever Australia Supply Services Limited ("Unilever") which company is the second defendant named in the Further Amended Summons which I have permitted to be filed in Court today.
Ms Nasralla's claim is a Nationwide v Naidu-type claim (Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471). She alleges that she was subject to bullying, harassment and victimisation in the course of her employment.
The involvement of Unilever in the matter is that Ms Nasralla's services were lent to that company by Randstad, and she worked in its offices as a Marketing Manager between 21 July 2010 and 11 October 2010.
Her case, as I understand it, I use that expression advisedly, is that she was bullied, harassed and victimised by a particular superior, who is an employee of Unilever.
The case, therefore, according to Mr Best of Counsel, who appears for Randstad, falls in potentially to the TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 line of territory.
As I have said, the plaintiff was in a management position and was earning in excess of $3,000 per week net.
Her damages are restricted under Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) not only in terms of the limited heads of damage that may be claimed but also in terms of the maximum (weekly) amount that may be awarded in respect of past and future economic loss. The maximum is significantly less than her actual earnings. Adopting that maximum, the parties agree that if her case is accepted in its entirety, damages may total $1.8 million.
That is not a difficulty so far as the District Court is concerned as between Ms Nasralla and Randstad because that Court has unlimited jurisdiction in respect of work injury damages claims. The difficulty arises out of the cross-claim between Randstad and Unilever. Unilever, represented before me by Mr Morris SC, as it is entitled to do, does not consent to the District Court having unlimited jurisdiction on the cross-claim.
The cross-claim is based only upon s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). There is no claim for contractual indemnity or a statutory indemnity (except under s 151Z(1)(d) Workers Compensation Act 1987 which indemnity currently is within the District Court's jurisdiction).
Mr Stanton of Counsel who appears for Ms Nasralla, points out that given the plaintiff's case is against her employer only, if accepted, it may be unlikely that any statutory contribution recovered by Randstad from Unilever would amount to an indemnity. He also tacitly accepts that the plaintiff's case at its highest may not be the ultimate outcome if she is successful.
Although those submissions are good so far as they go, it is at least possible and not fanciful that: if Ms Nasralla is successful; if Randstad is successful in turn on its cross-claim; and if the senior officer of Unilever is found to have acted in a harassing, bullying and victimising way that the statutory contribution recovered by Randstad could come close to an indemnity.
Therefore, I am satisfied that on the cross-claim in accordance with s 140(3) that the amount to be awarded to the cross-claimant, if successful, is, in the statutory language, "likely to exceed the jurisdictional limit of the District Court". It seems to me, therefore, that the statutory pre-condition to a transfer has been made out. It is obvious to me that a claim for statutory contribution under s 5 is not a claim for damages arising from personal injury within the meaning of s 140(3).
Mr Morris supports Mr Best's application for the matter to be removed and he argues that in any event there are likely to be complex issues of fact and law in a case of this type making the Supreme Court the proper forum. I need not decide whether that is right or wrong, with great respect, given the decision I have made under s 140(3)(b).
The complicating factor here, to the extent to which I have a discretion, is that Mr Stanton applies for an adjournment of this application to enable an application already filed in the District Court - but if I may say so only after the Summons in this Court - as to whether or not the cross-claim should be severed from Ms Nasralla's claim. He, with respect, puts forward a number of cogent arguments about why that perhaps should be done.
First, the District Court has unlimited jurisdiction in relation to his claim.
Secondly, the truncated regulated costs regime applicable to work injury damages cases prejudices the plaintiff if the matter is brought into this Court because costs are likely to be higher and the hearing longer if the cross-claim is not severed. The prejudice is that she will have to pay more out of her own pocket for solicitor and client costs if successful than if the matter proceeds as a work injury damages case only in the District Court.
Thirdly, her injury is a form of mental harm and although she has been suffering from it for rising six years, the evidence Mr Stanton has led in the form of a report of Dr O'Connell, the treating psychiatrist, is that the continuation of the legal process is exacerbating her condition. The doctor goes so far as to say that he does not expect to make significant progress in treatment whilst Ms Nasralla is undergoing continual stresses relating to the legal cases.
It is well-known that prejudice, forensically, should not be measured simply in terms of money and that there are intangible matters which cannot be so measured which are relevant to the exercise of a Court's powers in matters of practice and procedure, particularly when one has regard to the spur of the overriding purpose.
I would not wish to second-guess what one of my colleagues in the District Court may do with the severance application but it seems to me that, subject to certain procedural difficulties that Randstad might face under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the evidence in the claim and on the cross-claim is likely to be identical. That is not at all unusual. In fact, it is the usual way of things in cases of this type.
Severance of the cross-claim would lead to the prospect of inconsistent decisions being made on essentially identical evidence. That, it seems to me, would be a powerful factor telling against the prospect of an application for severance.
Moreover, severance would possibly prejudice Randstad, in particular, inasmuch as it would have to fight the same case twice, once as defendant and once as plaintiff. That, it seems to me, would not be consistent with the overriding purpose.
Mr Morris informs me that the case so far as his client is concerned is not ready for hearing. The particular witness has left Australia and lives in Holland and there are difficulties obtaining a proof of evidence from him, simply for that reason. It seems to me generally, looking at the information contained in the affidavit of Mr Lawandi, Solicitor, sworn in the District Court proceedings in support of the severance application but tendered before me without objection as Exhibit 1, each party has observed their obligation in the District Court of progressing the case with a reasonable degree of forensic diligence.
The cost issue is a significant one but it is one that I am unable to cure because the cost difficulty arises out of the legislation that Parliament has chosen to enact in relation to these work injury damages case. It may be that those costs regulations were never really promulgated with the circumstance in mind that this Court is so familiar with, that often workers are dragged along in more complex litigation because of the availability of cross-claims amongst a number of parties who may share legal responsibility for what is characterised as a work injury under the workers' compensation legislation.
Moreover, although I give weight to what Dr O'Connell says, it has been six years since the cause of action arose. That is not to criticise Ms Nasralla or her solicitors, but it is a fact of life. I bear in mind that she is receiving workers' compensation benefits, as Mr Best reminded me, and that includes medical treatment such as may be available for her particular condition.
Although the matter has been a little more difficult to resolve than other similar matters, I am of the view that, as persuasively as the argument was put, as Mr Best has engaged s140 (3)(b) and I am not satisfied that the application for severance has sufficient prospects of success to justify an adjournment, I should refuse the adjournment and make the orders sought in the Summons.
I order that:
1. District Court proceedings number 2015/41771 be transferred to this Court under s 140 of the Civil Procedure Act 2005.
2. The pleadings in the District Court stand as pleadings in this Court.
3. Costs of the Summons are the parties' costs in the cause.
4. List the matter for directions before the Common Law Case Management Registrar at 9.00am on 4 March 2016.
5. Leave to Ms Nasralla to withdraw the motion for severance filed in the District Court on 23 February 2016. The motion is struck out with no order as to costs on the motion.
[3]
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Decision last updated: 14 March 2016