Sonia Lee White v Viewden Pty Limited

KBRV Resort Operations Pty Limited v Chilcott (2001) 51 NSWLR 516 Parry v WGE Engineering [2003] NSWSC 337 Boughey v The Queen (1986) 161 CLR 10 CASES CITED : Tillmann Butcheries Pty Ltd v Australasian Meat Industry Employee's Union (1979) 42 FLR 331 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 Waugh v Kippen (1986) 160 CLR 156 Middleton v Campbell Bros Ltd [2005] NSWCA 50

Sonia Lee White (Plaintiff) PARTIES : Viewden Pty Limited (Defendant)

Mr D Rofe QC, Mr B Hull (Plaintiff) COUNSEL : Mr J Sexton SC (Defendant)

Malcolm Johns & Company (Plaintiff) SOLICITORS : Thompson Cooper Lawyers Pty Limited (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

10648 of 2005 Sonia Lee White v Viewden Pty Limited

JUDGMENT 1 JOHNSON J: Following a hearing before me as Duty Judge on 28 February 2005, I made the following orders:

(a) pursuant to s.145 of the District Court Act 1973 , that the proceedings in the District Court of New South Wales No. 715 of 2004 be removed into the Supreme Court of New South Wales;

(b) that the pleadings in the District Court stand as pleadings in this Court;

(c) that the costs of the summons be costs in the cause;

(d) that the matter be stood over to the next call-up list in the Common Law Division of the Court.

I indicated that I would give reasons for these orders at a later time. This judgment contains those reasons.

The Plaintiff's Claim 2 By Ordinary Statement of Claim filed in the District Court of New South Wales on 25 February 2004, the Plaintiff, Sonia Lee White, sued the Defendant, Viewden Pty Limited, for damages in negligence. It is alleged that the Defendant carried on business and was the occupier of a hotel known as the Macquarie Inn at Dubbo. The Plaintiff seeks to recover from the Defendant damages arising out of what is alleged to be a traumatic brain injury suffered on 27 January 2002 when she struck her head on an air conditioning duct upon descending from an elevated, spring-loaded dance floor within the Defendant's premises. 3 At the time of application before me, the proceedings were listed for hearing in the District Court for three days commencing on 1 March 2005. 4 On 18 February 2005, the Plaintiff's Solicitor sought the Defendant's consent to unlimited jurisdiction in the District Court for the purposes of s.51 District Court Act 1973 ("the Act"). On 21 February 2005, the Defendant's Solicitor advised that the Defendant would not consent to unlimited jurisdiction. 5 On 25 February 2005, the Plaintiff filed a Summons in this Court seeking removal of the proceedings into the Supreme Court pursuant to s.145(2) of the Act. That summons came before me for hearing as Duty Judge on 28 February 2005. Mr David Rofe QC and Mr Brendan Hull appeared for the Plaintiff and Mr Julian Sexton SC appeared for the Defendant. Mr Rofe QC read two affidavits sworn by Stacey Louise Nadel, both sworn on 25 February 2005, in support of the application.

Section 145 District Court Act 1973 6 Section 145 of the Act provides as follows:

(1) Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit.

(2) An action for damages in respect of personal injury or death (other than a motor accident claim or work injury damages claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.

(3) A motor accident claim or work injury damages claim may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance". 7 In the present application, the Plaintiff relied upon s.145(2) of the Act, submitting that the Court ought be satisfied that the amount to be awarded to the Plaintiff, if successful, would be likely to exceed $750,000.00. 8 Section 145 is remedial and confers a discretionary power on the Supreme Court: KBRV Resort Operations Pty Limited v Chilcott (2001) 51 NSWLR 516 at 526 (paragraph 32). The onus rests on the party seeking the order: Parry v WGE Engineering [2003] NSWSC 337 at paragraph 3. Subject to satisfying any threshold requirements, s.145 confers a discretionary power upon the Court which is exercised having regard to the relevant circumstances of the particular case before the Court and so that justice is best served between the parties: Parry, above, at paragraph 3. 9 In the circumstances of this case, an order for removal ought be made only if the Supreme Court is satisfied that the amount to be awarded to the Plaintiff in the case, if successful, would be likely to exceed $750,000.00. For the purpose of determining whether the Court is so satisfied, in the ordinary course, regard will be had to documentary material touching upon the question of damages. The Court is required by s.145(2) to proceed upon the statutory assumption that the Plaintiff will be "successful". The Court should assume that the Plaintiff will succeed entirely on liability.

The Meaning of "Likely" in s.145(2) 10 Counsel made submissions concerning the meaning of the work "likely" in s.145(2) of the Act. Mr Rofe QC submitted that the Court ought be satisfied that it is probable that the award of damages would exceed $750,000.00. He submitted that the Plaintiff satisfied s.145(2) on its highest construction, namely "likely" meaning "probable". Mr Sexton SC submitted that something less than "probable" was the appropriate test, given the nature of the function which the Court discharges under s.145 and the material which the Court will have before it. 11 It has been observed that the meaning of the word "likely" is liable to vary according to the context in which it is used: Boughey v The Queen (1986) 161 CLR 10 at 20. 12 In Boughey, above, Mason, Wilson and Deane JJ at 21 said that the word "likely", in the statutory context there under consideration, conveyed the notion of a "substantial - a real and not remote - chance regardless of whether it is less or more than 50%". In doing so, their Honours referred to authorities where the word "likely" had been given such a meaning in other contexts: Tillmann Butcheries Pty Ltd v Australasian Meat Industry Employee's Union (1979) 42 FLR 331 at 346; Sheen v Fields Pty Ltd (1984) 58 ALJR 93 at 95; Waugh v Kippen (1986) 160 CLR 156 at 166-167. Gibbs CJ at 14 and Brennan J at 42 in Boughey, considered that the word "likely" meant "probable". 13 The statutory context surrounding s.145 involves a determination to be made by the Court upon materials placed before it as to the likely award of damages in the particular case. However, that decision does not involve a trial of the action. On the one hand, it might be considered unlikely that the legislature would pose a test for such a decision which was the same test as that to be applied by the trial judge at the hearing of the action, namely, the balance of probabilities. Rather, it might be contended that a lesser standard was appropriate given the limited nature of the function being carried out on a s.145(2) application. The submission of Mr Sexton SC recognised this practical reality and the limitations upon the s.145 decision in this respect. 14 An argument is available that the word "likely" in s.145(2) ought be accorded the meaning of "substantial - a real and not remote - chance regardless of whether it is less or more than 50%", the meaning given to the word "likely" by the majority in Boughey, above. 15 The contrary argument would accord to the word "likely" what Gibbs CJ at 14 and Brennan J at 42 in Boughey, above, said was its ordinary meaning of "probable". This argument would recognise that the Court would approach the issue upon the basis of a statutory assumption of success on the Plaintiff's part, and upon the basis that the determination would be made, in the ordinary course, upon written materials provided in support of the application.

Decision 16 It was not necessary to determine the proper construction of the word "likely" in the present case. Although the issue was touched upon in submissions, it was not developed at any length. The determination of the question ought await a case where the issue is critical to the application and where the matter is fully argued. 17 I was satisfied that the amount to be awarded to the Plaintiff in this case, if successful, would be likely to exceed $750,000.00 in the sense that it was probable, on the materials before me, that that will occur. I was satisfied that the Plaintiff had discharged the onus upon her under s.145(2) of the Act on the probabilities. 18 A number of reports and witness statements were relied upon by the Plaintiff including the report of Dr Wendy Roberts dated 23 February 2005. I had regard to a schedule of damages prepared by Mr Hull, junior counsel for the Plaintiff, which estimated the likely quantum of damages, including provision for fund management, within a range of $931,614.00 to $1,005,943.00. I note that such a schedule of damages prepared by counsel for a plaintiff has been relied upon by the Court of Appeal for the purpose of an order of removal from the District Court to the Supreme Court under s.145(3) of the Act: Middleton v Campbell Bros Ltd [2005] NSWCA 50 at paragraph 11. 19 Mr Sexton SC submitted, in any event, that there was "other sufficient reason for trying the action in the Supreme Court" for the purposes of s.145(2). He submitted that the type of case now put by the Plaintiff, involving elements of future care and fund management for a brain-damaged claimant, rendered the claim more suitable to be tried in the Supreme Court. I do not consider that this factor ought lead to the removal of an action under s.145(2). The District Court of New South Wales determines substantial damages claims regularly, including complex decisions with respect to damages for brain-damaged plaintiffs. In any event, I have determined that the proceedings be removed into the Supreme Court upon the basis advanced by the Plaintiff.

Costs 20 The Plaintiff sought an order that the costs of the s.145(2) application be costs in the cause. The Defendant submitted that the appropriate order was that the Plaintiff pay the Defendant's costs of the application. 21 Mr Sexton SC submitted that the Plaintiff sought the indulgence of the Supreme Court by way of the s.145(2) application, which was made extremely late, on the eve of the scheduled hearing date in the District Court. He also submitted, in effect, that the Plaintiff ought to have commenced these proceedings in the Supreme Court in the first place and that this ought to have been apparent to the Plaintiff from an early time. 22 The Plaintiff submitted that it was open to the Defendant to consent to extended jurisdiction under s.51 of the Act, but that the Defendant declined to do so. Mr Rofe QC submitted that the Plaintiff stood ready to proceed with the District Court hearing listed to commence on 1 March 2005 if the Defendant had consented to extended jurisdiction. Mr Rofe QC submitted that the Defendant could have avoided incurring costs in the present application by consenting to extended jurisdiction. 23 In my view, the appropriate order, in the exercise of the Court's discretion, was that costs be costs in the cause. In circumstances where the Defendant declined to consent to extended jurisdiction, but required the Plaintiff to make this application to the Supreme Court, it was not appropriate that the Plaintiff be ordered to pay the Defendant's costs of the application.

Conclusion 24 It was for these reasons that I made orders as set out in paragraph 1 of this judgment following the hearing of the matter on 28 February 2005. **********

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