Williamson v Pluim Interiors Pty Limited

Supreme Court of NSW|2017-10-05|Before: Beech-Jones J

Solicitors: LHD Lawyers (Plaintiff) Thompson Cooper Lawyers (Defendant) File Number(s): 2017/00171167

EX TEMPORE Judgment

HIS HONOUR: By summons filed 7 June 2017 the plaintiff, Barry Williamson, seeks three substantial orders. The first is that proceedings 2015/00377324 now pending in the District Court ("the District Court proceedings") be transferred into this Court. The second is an order that, upon the transfer of the District Court proceedings into this Court, they then be immediately transferred back to the District Court. The third substantive order sought is in effect declaratory relief to the effect that the making of those first two orders would free the District Court of the monetary limit on its jurisdiction, namely $750,000, provided for in ss 43(1) and 4(1) of the District Court Act 1973.
Mr Williamson is the plaintiff in the District Court proceedings. The defendant in those proceedings and in this Court, Pluim Interiors Pty Ltd (In Liq) ("Pluim"), neither consents to nor opposes the first order but does oppose the second and third. Pluim contends that to seek that relief to that effect is an abuse of process and that, in any event, the Court does not have the power to make those orders. (I would note that leave to proceed against Pluim under s 500(2) of the Corporations Act 2001 (Cth) has already been granted.)

The District Court Proceedings

In December 2005 Mr Williamson commenced the District Court proceedings. In his statement of claim he alleges that in September 2010 he was employed by a labour hire company which required him to work "under the care, control and management" of Pluim at a building site. He pleads he injured his back while unloading a delivery truck of joinery which was mounted on pallets in circumstances in which he says Pluim was negligent.
In February 2016 Mr Williamson filed a statement of particulars which set out an extensive list of disabilities related to his back condition. In that statement he particularised a claim for past out of pocket expenses of just over $42,000, for future out of pocket expenses of just over $118,000, an amount for past and future domestic assistance that exceeded $110,000, past loss of income of $263,000, future economic loss for an amount just over $540,000 and lost superannuation benefits said to amount to over $88,000. The total of those figures, which I note does not include any amount for non-economic loss, exceeds $1.16 million.
At the hearing of the summons counsel for Mr Williamson provided what I understand is an updated schedule of damages which quantifies the plaintiff's loss as over $1.51 million.
During 2016 Mr Williamson's solicitors received medical reports that at least on one view provide support for the quantification of the amounts he has claimed. For example, the report of an orthopaedic consultant dated 13 April 2016 recorded that Mr Williamson has not worked since his accident. The author of that report concludes that although there was some evidence of a pre-existing condition Mr William had "suffered a significant injury to his lumbro-sacral region" and that he was not fit to return to his pre-injury work although that he could work part-time for six to nine hours a week. An occupational therapist concluded that Mr Williamson is unlikely to be successful in finding employment on that basis. A psychiatrist's report dated August 2016 includes the opinion that Mr Williamson is depressed.
In an affidavit sworn for these proceedings, Mr Williamson's solicitor states that "based on the medical evidence obtained and the plaintiff's pre-injury earnings it is reasonable that the damages that could be awarded to the plaintiff could exceed the jurisdictional limit of the District Court of New South Wales". The evidentiary material filed on behalf of Pluim for the purposes of these proceedings does not undermine that assessment. That material was adduced to support a contention that it should have been apparent from the beginning that the amount of damages being sought by Mr Williamson would exceed that amount. In the end result it is not necessary to resolve a dispute about that matter, at this point.
At some point Mr Williamson's solicitors sought Pluim's consent to the District Court exercising extended jurisdiction in respect of his claim, but that was not forthcoming. Otherwise, I note that since the filing of the summons Pluim has served at least two reports of an orthopaedic surgeon. Again on one reading of those reports there does not appear to be a significant difference between the opinions expressed in that report about Mr Williamson's level of functioning and those referred to in the material served on behalf of the plaintiff.

Statutory Provisions

The relevant statutory provisions conferring jurisdiction on the District Court are ss 44(1) and 51 of the District Court Act. They relevantly provide: "44 Actions (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind: (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and (ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise, other than an action referred to in paragraph (d) or (e), (b) (Repealed) (c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will, (d) any motor accident claim, irrespective of the amount claimed, (d1) any work injury damages claim, irrespective of the amount claimed, (e) any proceedings transferred to the Court under section 146 (1) of the Civil Procedure Act 2005, irrespective of the amount (if any) claimed in those proceedings. … 51 Consent jurisdiction (1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced. (2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies: (a) if a party to the action or cross-claim files a memorandum of consent in respect of the action or cross-claim, or (b) if no objection to the Court's jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences. (3) For the purposes of subsection (1): (a) the jurisdictional limit of the Court in relation to an action commenced before 1 July 1993 is taken to be $100,000, and (b) the jurisdictional limit of the Court in relation to an action commenced on or after 1 July 1993 but before 18 July 1997 is taken to be $250,000. (4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced. (5) This section does not apply in relation to an action referred to in section 44 (1) (c). (6) Nothing in this section limits the operation of section 140 of the Civil Procedure Act 2005. (7) In this section, memorandum of consent in relation to an action or cross-claim means a document signed by each party to the action or cross-claim, or the party's Australian legal practitioner, in which it is stated that each of those parties consents to the action or cross-claim being tried in the Court and is aware that, unless the document is filed, the Court will not have jurisdiction to dispose of the action or cross-claim." I have already noted that "jurisdictional limit" referred to in s 44(1)(a)(ii) is defined in s 4(1) of the District Court Act as $750,000.
Section 140 of the Civil Procedure Act 2005 deals with the transfer of proceedings from inter alia the District Court to the Supreme Court. It provides: "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. (2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District 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. (4) Proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court. (5) This section extends to proceedings that have been transferred to the District Court or the Local Court pursuant to a previous transfer order under this Division or under Division 2."
One of the statutory predecessors to these provisions was s 145 of the District Court Act. In particular, former s 145(2) of the District Court Act provided that in an action for damages in respect of personal injury or death the action could only be removed into the Supreme Court if the Court was 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".
Section 146 of the Civil Procedure Act deals with the transfer of proceedings from this Court to the District Court. It relevantly provides: "146 Transfer of proceedings to lower court (1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires. … (3) In determining: (a) whether any proceedings could properly have been commenced in the lower court, or (b) whether any cross-claim could properly have been brought in the lower court, the higher court must have regard to the current limits of the lower court's jurisdiction as if they had been the limits of that jurisdiction when the proceedings were commenced, or the cross-claim brought, in the higher court. (4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied: (a) in the case of a motor accident claim or 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. (5) This section extends to proceedings that have been transferred to the Supreme Court or the District Court pursuant to a previous transfer order under Division 1."
One of the statutory predecessors to s 146 is former s 143 of the District Court Act. That provision established a precondition to the transfer of proceedings from this Court to the District Court that this Court conclude that the proceedings that are pending "could properly have been commenced as an action" in the District Court. Former ss 143(3) and 143(5) of the District Court Act were not relevantly different to ss 146(3) and 146(4) of the Civil Procedure Act.
It can be seen that s 44(1)(e) of the District Court Act provides that if proceedings are transferred to the District Court from this Court, then the District Court can determine the action so transferred without being constrained by the "jurisdictional limit". This is arguably reinforced by s 149 of the Civil Procedure Act which provides: "149 Jurisdiction of lower court The lower court has, and may exercise, all of the jurisdiction of the higher court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings."

Transfer to this Court

The first issue that arises is whether the District Court proceedings should be transferred into this Court. Such an order cannot be made unless the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court or if there is other sufficient reason to do so (Civil Procedure Act, s 140(3)(b)).
In Tauri v Janlin Circuses Pty Ltd t/as Stardust Circus [2017] NSWSC 1337 at [7] McCallum J summarised the relevant principles that apply when the Court is determining whether it is likely that the amount to be awarded to a plaintiff if they are successful will exceed the jurisdictional limit. Her Honour stated: "The approach to be taken to that assessment is well-established. In determining the question posed by s 140(3), the Court is not required to engage in a preliminary trial of the matter and, in particular, is not required to engage in an individual assessment of each head of damage under which a claim is made: Johnstone v State of New South Wales [2006] NSWCA 105 at [23] per Giles JA; Santow and McColl JJA agreeing at [26] and [27]; Younes v QIC Ltd (trading as Westpoint Blacktown) [2012] NSWSC 451 at [50] (Bellew J). Rather, the task is to arrive at a likelihood, to an extent as a matter of impression but founded on the evidence before the Court: Johnstone at [22]. The term "likely" does not mean more probably than not. It requires the Court in a summary way to make an assessment as to whether there is a real chance of the plaintiff obtaining a verdict of more than $750,000 if successful: Cubrilo v Veljovic [2015] NSWSC 367 at [9] (Campbell J), cited with approval in Parker v MID Plumbing Services Pty Ltd [2017] NSWSC 1060 at [16] (Lonergan J)."
Applying these principles and based on the material that I have already summarised I am relevantly satisfied that, if the plaintiff is successful, then the amount to be awarded is likely to exceed the jurisdictional limit of the District Court, that is it is likely to exceed $750,000.
Further, subject to one matter, I consider it otherwise appropriate to transfer the matter to this Court. In circumstances where a defendant does not claim that they are relevantly prejudiced by the making of such an order, it is not in the interests of justice to deprive a party of a realistic opportunity to obtain a judgment that represents the full amount of a loss they have suffered.
The one matter of exception concerns the possibility that the plaintiff might not have sought a transfer to this Court if it was to determine that the matter could not or should not be transferred back to the District Court. However, in oral submissions Mr Williamson's counsel confirmed that the claims for relief are not interdependent. Accordingly, I will make order 1 in the summons.

Transfer to the District Court

The positions of the parties require me to explain the decisions in Ge, Rodrigues and Sheedy. In Ge, Studdert J set aside an order of a Master who had transferred proceedings to the District Court purportedly pursuant to former s 143 of the District Court Act in circumstances where they had previously been transferred from the District Court to the Supreme Court pursuant to former s 145 of the District Court Act. Subject to two matters raised by counsel for Mr Williamson in argument, which I will return to, there were no relevant differences between former s 143 of the District Court Act and s 146 of the Civil Procedure Act and no relevant differences between former s 145 of the District Court Act and s 140 of the Civil Procedure Act.
There were two bases upon which his Honour set aside the Master's order in Ge. First, assuming that there was power to transfer the matter to the District Court under former s 143(1), Studdert J concluded that it would be an abuse of power to do so because it deprived the aggrieved party of "their legitimate expectation that absent consent to the unlimited jurisdiction of the District Court that court's jurisdiction would be limited to $750,000" (at [20]).
Second, Studdert J concluded that the Master had erred in failing to properly consider under former s 143(1) whether the relevant proceedings "could properly have been commenced" in the District Court given that it had already been concluded in the Supreme Court that the damages likely to be recovered if the plaintiff was successful would exceed $750,000. In so concluding his Honour reasoned as follows (at [25] to [28]): "In my opinion, it was not appropriate to remit the matter to the District Court. The operation of s 143(1) is enlivened where the Supreme Court is of the opinion that any proceedings pending in this court "could properly have been commenced as an action in the [District] Court." One of the matters to be addressed in determining whether the proceeding could properly have been commenced in the District Court is the amount claimed. This is self-evident and, in any event, this construction is in sympathy with s 143(3). Could these proceedings "properly have been commenced as an action in the [District] Court"? Absent the filing of a Memorandum of Consent under s 51, that question must, in my opinion, be answered in the negative. That is so because it was established on the transfer application under s 145 that the claim was one in which, in the event that the plaintiff succeeded, she would be likely to recover damages in excess of $750,000. This was not a case to be transferred to the District Court. [Counsel for the Plaintiff] submitted there is tension between s 143(1) and s 44(1)(e) of the District Court Act. I do not think that this is so because, although the effect of the making of an order under s 143(1) gives the District Court unlimited jurisdiction by reason of s 44(1)(e), before any order for transfer is made under s 143(1), the Supreme Court has to consider under that section whether such jurisdiction should be conferred. No doubt there would be cases in which at the time of the making of the order under s 143, the size of the claim was not fully appreciated. In such a case where ultimately damages were assessed in excess of $750,000, s 44(1)(e) had the effect of ensuring those damages were recoverable to their full extent." (emphasis in original)
The premise of Studdert J's reasoning in this respect is that, in determining whether the relevant proceedings could have been commenced as an action in the District Court for the purposes of former s 143(1), the Court does not have regard to the possibility of the District Court's jurisdiction being "extended" either under s 44(1)(e) or s 51. His Honour drew support for that conclusion from the presence of former s 143(3) of the District Court Act, whose equivalent provision is s 146(3) of the Civil Procedure Act. If that premise was not correct then former s 143(3) would be otiose.
In Rodrigues, Garling J vacated an order that his Honour had made transferring proceedings back to District Court that had just been transferred from that court to this Court because the amount of damages was likely to exceed the District Court's jurisdictional limit of $750,000. His Honour vacated the order on the basis that the "interests of justice" warranted the proceedings remaining in this Court (at [49]). His Honour had previously made the order after considering the interests of justice had warranted the proceedings being transferred back to the District Court.
There is no doubt that in Rodrigues Garling J proceeded on the assumption that s 146(1) of the Civil Procedure Act permitted the immediate transfer of the proceedings in question back to the District Court. However, his Honour did not decide that issue and he was not referred to the decision in Ge.
In Sheedy, RS Hulme J followed Ge and concluded that it would be an abuse of process to transfer proceedings back to the District Court where they had been transferred into this Court, because of an acceptance of the likelihood that the damages that would be recovered by the plaintiff if they were successful would exceed $750,000 (at [11]-[13]). His Honour rejected the contention that the relevant proceedings could have been commenced in the District Court because, although the amount claimed exceeded $750,000, it was less than fifty per cent greater than that amount and so could be determined by the District Court if the defendants did not indicate an objection to the exercise of that jurisdiction within three months of the trial as provided for in s 51(2)(b) of the District Court Act (at [11]). In my respectful opinion that aspect of RS Hulme's conclusion in Sheedy is completely consistent with Ge.
The plaintiff's written submissions contend that Ge could be distinguished because it was decided by reference to the transfer provisions of the District Court Act and not under the provisions of the Civil Procedure Act. Ge was decided by reference to ss 44 and 51 of the District Court Act, which have not changed, but it is otherwise correct to state that it did not concern the transfer provisions of the Civil Procedure Act.
In oral argument counsel was asked to identity what are the relevant differences between the Civil Procedure Act and the transfer provisions previously found in the District Court Act. Counsel pointed to s 56 of the Civil Procedure Act as well as s 146(4) of the Civil Procedure Act. In relation to the latter, as I have already explained, that is no different to former s 143(5) of the District Court Act. In fact, that provision substantially reinforces Studdert J's conclusion, in that it provides that there is not to be an automatic transfer of proceedings in respect of personal injury or death that are pending in the Supreme Court to the District Court if the amount to be awarded to the plaintiff if successful is likely to exceed the jurisdictional limit of the District Court.
In relation to the former provision, that is s 56 of the Civil Procedure Act, I do not see how that can affect the proper construction of this aspect of s 146(1) which relates to the Court's power to transfer, not its discretion to do so. There is no doubt that if the time came to consider whether to exercise a power that may have arisen to transfer the proceedings to the District Court the various considerations in s 56 would have to be considered.
However, at this point the real issue is the anterior question as to whether this Court can form a conclusion that the proceedings could properly have been commenced in the District Court in circumstances where I have already concluded that the amount of damages the plaintiff is likely to recover, if he is successful, exceeds that court's jurisdictional limit. In determining the issue posed by s 146(1)(a) of the Civil Procedure Act the Court looks to what is presently known about those proceedings and then asks whether they could have been properly commenced in the District Court.
Otherwise the plaintiff's written submissions noted that RS Hulme J's judgment in Sheedy does not refer to Rodrigues. This is also correct but it does not advance the matter for two reasons. First, it follows from what I have stated that Rodrigues is not authority for the proposition that proceedings that have been transferred to the Court from the District Court in these circumstances can then be immediately transferred back to the District Court. Second, in any event in Rodrigues the Court was not referred to Ge which did decide that.
I am not bound by first instance decisions of other judges in this Division, including Studdert J's decision in Ge. However, at the very least those decisions should be afforded great weight. In circumstances where, as I have stated, Rodrigues did not decide the issue but Ge did, then the latter should be accorded significant deference. In any event with respect to Studdert J I am satisfied that both aspects of Ge were correct. I would add that the effect of applying Ge to the Civil Procedure Act does not mean that proceedings that are transferred into this Court from the District Court can never be transferred back. However, it does mean that if the Court determines to transfer proceedings into this Court because it concludes that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, and if that opinion still holds, then that means the Court cannot conclude under s 146(1) that the proceedings could have been properly commenced in the District Court. However, if, for example, a proceeding was transferred into this Court from the District Court in circumstances where the Court concluded that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the Court, and where it later emerged that the likely damages to be recovered are much lower, then in those circumstances one can see how the power in s 146(1) might be enlivened. Of course whether it would be exercised is a different matter.
It follows that in this case I must dismiss so much of the summons that seeks the re-transfer back to the District Court of the proceedings that I have just transferred into this Court. Having already concluded that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of this Court, namely $750,000, I cannot now form the opinion that the proceedings could properly be commenced in the District Court. It also follows that the third substantive order sought by the plaintiff must also be rejected.
Accordingly, the Court orders that: 1. Proceedings 2015/00377324 in the District Court of New South Wales at Sydney be transferred to the Supreme Court of New South Wales at Sydney. 2. The summons otherwise be dismissed.

Costs

After judgment was delivered, counsel for the defendant sought an order that the plaintiff pay his client's costs of the summons seeking transfer on an indemnity basis as well as the costs of four appearances in the District Court being on 22 February 2017, 4 May 2017, 10 May 2017 and 13 June 2017.
The relevant delinquency that was said to found an order for costs on an indemnity basis was the fact that the plaintiff had commenced proceedings in the District Court in circumstances where it either was known, or should have been known, from the outset that the amount claimed would exceed the jurisdictional limit of the District Court, specifically $750,000. I am satisfied that the plaintiff should have been aware of that fact but, of itself, that does not amount to a delinquency much less a delinquency that would warrant an order for indemnity costs on an application such as this. A plaintiff who commences proceedings for personal injury damages in the District Court with the knowledge the amount of damages they may recover could exceed $750,000 may do so in the belief that, if there is nothing particularly novel about their case, then a defendant may be willing to consent to extended jurisdiction. They are entitled to assume that many defendants are content to have personal injury cases heard and determined to finalisation in a Court that has a long history of dealing with personal injury matters.
That said, in this case Pluim filed a defence which was filed in February 2017 which made it absolutely clear that it objected to the District Court exercising a jurisdiction to award a sum beyond the jurisdictional limit. From no later than that time the plaintiff was aware of Pluim's objections. Further, had the plaintiff not sought to remit the proceedings back to the District Court after they were transferred into this Court it seems obvious that the defendants would have taken a position of neither opposing nor objecting to the relief sought in the summons and would generally have taken a completely passive role in the proceedings. Even if Pluim had consented to the transfer it still would have been necessary for the plaintiff to convince this Court that transfer was open to be ordered and should be ordered.
In those circumstances I can see no basis for resisting an order that the plaintiff pay Pluim's costs of these proceedings on an ordinary basis, although that order will not be able to be enforced until the finalisation of the proceedings that are transferred into this Court.
As for the appearances in the District Court I am at this point not satisfied that those appearances would not have occurred even if the plaintiff filed a summons soon after it received Pluim's defence and only sought a transfer into this Court. In particular, I note that one of the complaints is that the plaintiff did not attend a medical report. I am in no position to assess that and its determination will need to await the outcome of the substantive proceedings.
Accordingly, I order: (3) The plaintiff pay the defendant's costs of proceedings 2017/00171167 on an ordinary basis. (4) Costs the subject of order 3 are not to be payable until the completion, at first instance, of proceedings 2015/00377324 that have just been transferred into this Court.

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: 11 October 2017

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