Scott Anthony Harland v Yarrahapinni Community House Incorporated

Supreme Court of NSW|2020-01-22|Before: Henry J, Basten JA, Hodgson JA

Judgment

This is an application for review of the Registrar's decision of 23 December 2019 refusing the plaintiff's application to have proceedings 2018/356076 in the District Court of New South Wales (District Court proceedings) transferred to this Court.
In the District Court proceedings, the plaintiff claims damages for injuries he received when working with the defendant as part of a Work for the Dole programme. Before the Registrar, the plaintiff had argued that the District Court proceedings should be transferred to this Court because his claim for damages will exceed $750,000, and the plaintiff would be prejudiced if the matter were not transferred as the defendant opposes the District Court having any extended jurisdiction: District Court Act 1973 (NSW), ss 51(2)(b), 51(4).
The District Court proceedings are listed for hearing on 10 February 2020. The plaintiff's notice of motion was filed on 13 January 2020 seeking to have the Registrar's decision set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 49.19, and the District Court proceedings transferred to this Court. The application came before me as duty judge yesterday and I am delivering this judgment on an urgent basis.
The background and procedural history of the proceedings and details of the plaintiff's claim for damages and some of the evidence are set out in [7]-[18] of the Registrar's reasons of 23 December; I will not repeat them here. There is no dispute that the Registrar accurately recorded the relevant details in those parts of her reasons.
The evidence adduced on this application includes the whole of the evidentiary material before the Registrar, together with a further affidavit read by the plaintiff. The affidavit annexes the transcript of the hearing before the Registrar and a report of an occupational therapist, Emily Howard, which had been served by the defendant on 7 January 2020. No objection was taken to the Court considering the Howard report on this application.

Legal principles on review

The applicable principles governing the review of a Registrar's decision are not in dispute.
Unlike the hearing of an appeal, a review does not require demonstration of error and is not restricted to a consideration of the material before the Registrar. As the Court of Appeal in Tomko v Palasty (No 2) [2007] NSWCA 369; (2008) 71 NSWLR 61 said (at [52]-[53] per Basten JA, Hodgson and Ipp JJA agreeing; see also Hodgson JA at [4]-[9]): [52] It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review. [53] Although on review this Court should exercise afresh the power to extend time, it does not follow that the reasoning of the Registrar should be ignored, or that variations in the material presented to him and the evidence adduced in this Court are irrelevant.
The Court may exercise its own discretion as to whether, and if so how, to intervene. The onus is on the person seeking to have the Registrar's decision set aside, to establish that the Court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2), per Hodgson JA at [7], Ipp JA agreeing.
As Tomko v Palasty (No 2) makes clear, the Court will have regard to the basis on which the decision under review was made and the material before the Registrar on the original application for review. Additional or fresh evidence may be taken into account. This factor is relevant to this application: Hawkins v Barkley-Brown [2010] NSWSC 48 at [16]-[24].

Plaintiff's review application

In her unpublished reasons (dated 23 December 2019), the Registrar concluded that the plaintiff's application to transfer the District Court proceedings to this Court should not be granted. The Registrar was not satisfied it was likely that damages awarded to the plaintiff would exceed the jurisdictional limit of the District Court (at [20]). The Registrar also considered that granting the transfer application would likely result in significant delay, which was relevant to the exercise of her discretion (at [21]).
The plaintiff submits that the Registrar erred in three respects.
The first respect relates to the Registrar's observation that "the defendant consents to the transfer but makes no concession in relation to the potential likely quantum of the claim". In fact, at the hearing before the Registrar, the defendant had made a concession that, if the plaintiff is going to succeed on liability, the quantum of damages would likely exceed the District Court's jurisdictional limit (T6:41-31).
The plaintiff accepts, correctly in my view, that the concession made by the defendant was not determinative of its original application before the Registrar.
Proceedings in the District Court on a claim for damages for personal injury are not to be transferred to the Court unless the Supreme Court is satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court: Civil Procedure Act 2005 (NSW), s 140(3)(b)(i).
If follows, in my view, that in misstating the defendant's position there has been no House v King type error which justifies setting aside the Registrar's decision.
The second respect raised by the plaintiff is that the Registrar erred in applying the incorrect test when considering whether the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court. He submits that, when one has regard to the evidence relied upon by both parties, there is material available to demonstrate that the likely damages, if he is successful, is in the range of $851,824.26 to $1,515,201.96, which exceeds the jurisdictional limit of the District Court, and the Registrar was wrong to conclude otherwise.
Counsel for the plaintiff provided an outline of submissions, which he also addressed orally, dealing with each head of damage claimed and some of the evidence in support. The submissions also identify what the plaintiff submits are errors on the part of the Registrar in her consideration of the plaintiff's claims for economic loss, past and future domestic assistance and non-economic loss.
In considering the plaintiff's application, it is not the role of this Court, nor was it required of the Registrar, to engage in its own assessment of each head of damages claimed in substitution for that of the claimant: see, eg, Judaline Marion Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451 ("Younes") at [50]. The approach to be adopted is to consider the evidence in an impressionistic and summary way: Cubrilo v Veljovic [2015] NSWSC 367 ("Cubrilo") at [3]. Based on that consideration, the Court has to be satisfied that there is a real chance that the plaintiff may recover more than $750,000 if successful. That must depend, in part, on the prospect of evidence put forward being accepted in preference to that of the defendant: Dodd v Wentworth Community Housing Limited [2017] NSWSC 1424; Younes at [50]; Cubrilo at [9].
Adopting that approach, I have not separately assessed each head of damage claimed by the plaintiff as part of this application. However, as they were dealt with by the Registrar, and are the subject of submissions by the plaintiff, I deal below with the claims for economic loss, domestic assistance and non-economic loss.
The first and the most sizeable aspect of the damages claimed and which the plaintiff submits raises as an error on the part of the Registrar is the plaintiff's claim for past and future economic loss. The calculations in the schedule of damages, relied on as at 13 September 2019, quantifies those amounts as $245,960 for past economic loss (incl interest), and $809,710 for future economic loss.
The Registrar observed that those amounts were seemingly calculated on a loss of income of about $950 per week. She was not satisfied that there was any evidence in support of those calculations in circumstances where the plaintiff's statement of particulars pleads that the plaintiff was earning about $260 net per week at the time of the accident.
The plaintiff submits that the Registrar was incorrect to state that there was no evidence to support the calculations. He relies on the expert report of Ms Skibby (the plaintiff's occupational therapist). Ms Skibby's report refers to the plaintiff's past employment as a telecommunications linesman (2006 - 2008) and as a labourer and farmhand (2008 - 2015). Ms Skibby gives evidence of the average wage for a full-time telecommunications and crop farm worker of $1,418 and $777 per week respectively. She suggests that the plaintiff's earning potential could be represented by the average of these amounts, which equates to $1.097.50 per week.
In view of Ms Skibby's report, I accept that there is some material before the Court in support of the damages claimed for economic loss of $950 per week. That said, the Registrar was correct to note that the claim is not supported by the statement of particulars. I also make two further observations about the plaintiff's claim for economic loss.
First, the calculation appears to be based upon the plaintiff being totally incapacitated from all forms of work since his injury and having no residual earning capacity at all. While there is conflicting evidence on this issue, there is some evidence, including from the plaintiff's medical reports, which supports the conclusion that the plaintiff may have some future earning capacity. For example: 1. Dr Stening's report dated 13 September 2019 suggests that the plaintiff may be fit for work which does not involve lifting more than 10kg, repetitive stooping or bending; although he accepted that he may need days off work due to symptoms and may need to retire earlier than the normal retiring age of 67 years; and 2. Dr Harland's report dated 14 March 2019, although opining that the plaintiff is totally incapacitated from work for which is he trained, experienced and qualified and is unable to compete with able-bodied persons in the open market place, does not exclude the prospect of vocational retraining or being fit for lighter semi-sedentary roles, such as light process and customer service work, as referred to in the report of Dr Stephenson.
Second, there are no wage records or other documents in evidence which establish that the plaintiff, in the period 2008 to 2015, was earning an amount broadly equivalent to that calculated by Ms Skibby, or the $750 per week put forward by the plaintiff in his submissions as an alternative basis for calculating economic loss. The reports in evidence refer to the plaintiff having worked as a farm labourer on a "seasonal" basis and "when work was available" (Ms Skibby report), and "doing intermittent labouring jobs" (Dr Porteous report, page 4).
Based on the evidence of the plaintiff's work history, particularly during the six year period immediately prior to the accident, I accept the defendant's submission that the quantum of economic loss claimed does not appear to reflect the plaintiff's most likely future circumstances, but for the injury.
In view of these matters, and consistent with the Registrar's reasons, the damages claimed for past and future economic loss set out in the plaintiff's statement of particulars and in the plaintiff's outline of submissions, at the lower rate of $750 per week, appear to be inflated.
The second aspect relates to the plaintiff's claim for past and future domestic assistance, which is calculated by the plaintiff to be $63,649.96 for past and $417,825.60 for future assistance.
The plaintiff takes issue with the Registrar's reliance on the evidence of Dr Stephenson, orthopaedic surgeon, who assessed the plaintiff's needs to be under the statutory threshold. The Registrar concluded that this evidence put into question whether the plaintiff would reach the relevant threshold pursuant to the Civil Liability Act 2002 (NSW), s 15(3)(a), such as to sound in any award of damages.
The plaintiff submits that Dr Stephenson's evidence is inadmissible as he neglected to conduct an assessment of the plaintiff in his home and the evidence concerns matters beyond his expertise.
The plaintiff also submits that the Registrar failed to consider the fact that, as a young man, the plaintiff has to date been able to avail himself of assistance from his parents and would require care on a commercial basis in the future.
I accept the plaintiff's submission that there may be a question as to the admissibility of Dr Stephenson's evidence. An assessment of the number of hours per week which might be required to undertake domestic duties and gardening is not the kind of expertise usually attributed to orthopaedic surgeons: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [93]; Lazare v City of Sydney Council and Others [2015] NSWSC 1456 at [49].
That said, and as noted above, the Registrar did not have the Howard report before her at the time of the original application. It was only served by the defendant on 7 January 2020. I have considered the Howard report on this application.
In her report dated 15 August 2019, Ms Howard assesses the plaintiff's past gratuitous assistance as below the statutory threshold. She also assesses the reasonably required future domestic assistance at a weekly cost of $142.05. If accepted, the plaintiff's claim for past gratuitous and future domestic assistance would total $140,487.45.
In her report, Ms Howard opines that the plaintiff's current level of disability and requirement for future domestic care could be mitigated by the use of specific aids and equipment (pages 5, 23). Those mitigants were not considered by Ms Skibby as part of her report.
Accordingly, the evidence discloses a range of damages for future domestic assistance of between $140,487.45 and $417,825.60, rather than a prospect of no damages, as referred to by the Registrar in her reasons.
The third aspect of the plaintiff's claim concerns the claim for non-economic loss. The calculation in the schedule of damages, relied on as at 13 September 2019, quantifies non-economic loss as 45% of a most extreme case, in the amount of $296,000. The Registrar stated that she had seen no evidence to suggest the injuries and disabilities allegedly suffered by the Plaintiff which sound in damages equivalent to that claimed.
In support of her conclusion, the Registrar correctly noted that there is no evidence to suggest the plaintiff required any extended period of hospitalisation. The Howard report confirms that, in May 2018, the plaintiff underwent an L3/L4 interiaminar decompression and L4/L5 laminectomy and had a 2 night hospital admission. The evidence is that, after this procedure, the plaintiff's nerve pain improved but his back pain remained.
As noted above, there is a difference in opinion relating to the extent of his future earning capacity and need for future domestic assistance. I also note that the statement of claim particularises psychiatric injury, although there is no evidence of the plaintiff having sought any psychiatric or psychological treatment.
Each of these matters will impact on the trial Court's assessment of non-economic loss. In my view, they also support the conclusion that the Registrar's impressionistic consideration of the evidence and the plaintiff's claim for non-economic loss was not an error of the type that would warrant setting aside her decision.
The final aspect of the Registrar's decision which the plaintiff submits gives rise to error is a failure to have appropriate regard to the relevant procedural matters.
The plaintiff accepts that the decision as to whether the proceedings ought to be transferred is in the Court's discretion and that case management principles identified in Division 1 of Part 6 of the Civil Procedure Act are relevant considerations.
The Registrar had regard, correctly in my view, to the need to exercise her discretion to transfer proceedings in accordance with the overriding purpose of proceedings being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56. Applying those principles, the Registrar took into account (again correctly in my view) the significant delay to the hearing of the plaintiff's claim that would likely result if the transfer application was allowed.
In her reasons, the Registrar also set out the procedural history to the application. That history identifies that there has been no delay or other failure on the part of the plaintiff in bringing the transfer application in this Court or in the way he has prosecuted the claim in the District Court.
The procedural history also records that the defendant filed its defence in September 2019, two months after the District Court proceedings had been listed for hearing. It is not in dispute that this was the first time that the plaintiff was on notice that the defendant took issue with the plaintiff claiming an amount in excess of the District Court's jurisdictional limit.
No explanation has been provided as to why the defence was filed so late.
The issue of the likely prejudice to the plaintiff if the transfer application was not granted was raised by the plaintiff during the course of the oral hearing before the Registrar (T5:14-34). In her reasons, the Registrar noted that she had the benefit of oral submissions from the parties.
The Registrar's conclusion that the application should not be granted was expressed to be "In all of the circumstances".
I am not satisfied that the Registrar failed to have appropriate regard to the relevant procedural matters, as contended by the plaintiff. A failure to refer expressly to a submission does not mean that it was not taken into account: see, eg, Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385-386.
That said, to my mind, the application of the procedural history and of case management principles to this case do not firmly favour refusing the present application.
The decision by the defendant to file its defence at a late stage is, in my view, significant. Accepting that maintaining the District Court hearing date and avoiding further delays is consistent with the objectives of s 56 of the CPA, presumably those issues may not have arisen if the defendant had filed its defence in a timely manner prior to the District Court proceedings being listed for hearing.
In my view, case management principles, while relevant and important, are not decisive in this case and do not justify denying the plaintiff a right to damages in excess of the District Court's jurisdiction.
That leaves the question of whether I am satisfied that the plaintiff will likely recover more than $750,000 in damages if successful. Based on an impressionistic and summary consideration of the evidence, I am satisfied. With all due respect to the Registrar, I disagree with her decision.
The medical evidence from both the plaintiff and the defendant indicates that the plaintiff's injury is likely to be a permanent impairment of a significant nature. It will prevent the plaintiff from engaging in work in the future for which he has been trained, has experience and is qualified to do. There is a question as to his fitness to return to work on the open market and he will require retraining if he is to do so.
The plaintiff is a young man; only 33. His prognosis is guarded and the medical and other evidence indicates that his injuries has left him with considerable symptoms in his lumbar spine which is likely to impact upon his capacity to enjoy life, as well as his capacity to gain future work.
Relevantly, the evidence before me, in the form of the Howard report (which, as noted above, was not before the Registrar), acknowledges that the plaintiff will require domestic assistance in the future for heavier household chores. It provides support for the plaintiff's claim for future domestic assistance in the amount of $140,487.45.
The plaintiff's schedule of damages claims a total of $2,020,503.50. For the reasons previously noted, that amount appears to be inflated, at least in respect of the claims for economic loss, and could be described as ambitious.
Other than making submissions in relation to the claim for economic loss, the defendant did not point to any evidence before me to suggest that the plaintiff's evidence, if not accepted, does not support an award of damages in excess of $750,000. This is not inconsistent with the concession that was made at the hearing of the original application before the Registrar.
Even if one accepts that the plaintiff's claim for future economic loss is to be based on a buffer amount of only say, $250,000 (as plaintiff's counsel put forward as an alternative), and a discount is made to the claim for non-economic loss, I am persuaded by the plaintiff's counsel's submissions that the evidence supports there being a real chance that the plaintiff could recover more than $750,000 in damages, albeit not by a significant amount.
No other discretionary considerations were put forward as matters which would warrant me not setting aside the decision of the Registrar.
So far as the costs of the notice of motion are concerned, the plaintiff seeks no more than that the costs be costs in the cause. That seems to me to be an appropriate order and was not contested by the defendant.
For these reasons, I make the following orders: 1. Pursuant to UCPR, r 49.19, the decision of Registrar Jones, in which the plaintiff's summons filed 18 November 2019 was dismissed, be set aside. 2. Proceedings 2018/356076 in the District Court of New South Wales at Sydney be transferred to this Honourable Court. 3. The pleadings in the District Court may stand as pleadings in this Court. 4. List the matter for directions before the Common Law Registrar at 9am on Friday, 7 February 2020. 5. The costs of plaintiff's notice of motion filed on 13 January 2020 are the parties' costs in the cause.

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: 24 January 2020

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