By a summons dated 6 April 2020, the plaintiff seeks an order pursuant to section 140 of the Civil Procedure Act 2005 (NSW) (the Act) that proceedings numbered 2018/00382224, which have been commenced in the District Court of New South Wales, be transferred to this Court. In support of that summons the plaintiff has read two affidavits, the first of Brendan Joseph Moran, solicitor, of 6 April 2020, and the second of Eva Antonia Magyar, solicitor, of 16 April 2020. Both of those affidavits were read without objection.
The defendant took a neutral position on the application, and neither consented to, nor opposed, the relief sought.
[2]
THE FACTS
The factual background to the application may be shortly stated.
The defendant was the owner and occupier of premises at 50A High Street, Millers Point (the premises), and was accordingly responsible for the care, control and management of renovation works which were being carried out in 2017. On 25 October 2017, the plaintiff attended the premises in the capacity of a self-employed plumber to work at the premises and was required to climb up to the first level. He alleges that in the course of descending from the first level to the ground level a tread on which he stepped suddenly broke, causing him to fall to the ground, as a consequence of which he suffered serious injury. The plaintiff alleges that the defendant was negligent in (inter alia) failing to install scaffolding at the location of the fall, and failing to provide a safe means of accessing the first floor of the premises.
The plaintiff asserts that he has sustained a number of injuries including a severe laceration to the scalp from the forehead extending to the right ear, a traumatic brain injury, an incomplete cervical cord lesion, associated weakness in the lumbar spine, as well as other injuries and related sequelae.
The proceedings were commenced in the District Court on 12 December 2018. They are presently listed for hearing on 6 May next, a little over three weeks' time.
In the course of preparing the case, the plaintiff's solicitors obtained a number of reports from specialist medical practitioners. Some of those reports are annexed to the affidavit of Mr Moran. Whilst I do not propose to recount the entirety of the contents of those reports, some matters arising from them are worthy of note in terms of the test that I must apply on the present application.
In a report of 29 March 2019, Dr Stephen Buckley, a consultant physician in rehabilitation medicine, diagnosed the plaintiff as having suffered a laceration of the scalp, as well as injuries to his low back, right knee, right wrist and left wrist. He set out in some detail the ongoing treatment which, in his opinion, the plaintiff would require, and expressed the opinion that the plaintiff was unemployable on the open labour market. In a report of 9 November 2018 Dr David Champion, who examined the plaintiff, found that the plaintiff had suffered similar injuries to those documented by Dr Buckley. He concluded that the plaintiff had also suffered residual post-traumatic stress symptoms and psychological consequences as a result of his injuries.
It is of some significance that the defendant has also had the plaintiff examined by no less than five separate medical specialists. In circumstances where a hearing date is fast approaching in the District Court, no report emanating from any of those examinations has been served by the defendant.
I have already noted that the statement of claim was filed in the proceedings on 12 December 2018. A defence was subsequently filed by the defendant on 1 April 2019 which including the following pleading:
"As to the whole of the Statement of Claim the Defendants say that, for the purposes of section 51(2)(b) of the District Court Act 1973, the Defendants object to the Court's jurisdiction being exercised to dispose of this action for an amount that exceeds the jurisdictional limit of the Court at the time the action was commenced."
It follows that since that defence was filed those acting for the plaintiff have been on notice that the defendant was not prepared to consent to the District Court having extended jurisdiction.
The affidavit of Mr Moran makes reference to the medical reports that he has received following examinations conducted on the plaintiff's behalf. The oldest of those reports is 9 November 2018. [1] The most recent is a report of Dr Teychenne of 10 May 2019. Mr Moran said that at the time of recently preparing an amended statement of particulars, he determined "that the damages claim exceeded the jurisdiction of the District Court of New South Wales." [2] He also said that following an informal settlement conference on 24 March 2020 (which did not result in a resolution of the matter) he "determined that the matter now required transfer to the Supreme Court of New South Wales as it does not appear that the matter will resolve prior to hearing and the quantum of the plaintiff's damages claimed exceeds the jurisdiction of the District Court of New South Wales." [3]
I am compelled to make two observations about those passages in Mr Moran's affidavit. Firstly, the determination to which Mr Moran referred was made on medical evidence which had been in his possession for at least 12 months, and in some cases longer. No satisfactory explanation has been put before me as to why it has taken more than 12 months for Mr Moran to reach a conclusion that the plaintiff's award of damages may exceed the jurisdiction of the District Court. Secondly, to the extent that Mr Moran made a determination that this application should be made because "the quantum of the plaintiff's damages claimed exceeds the jurisdiction of the District Court of New South Wales", that formulation misstates the relevant test. The determination I have to make is not whether a claim exceeds the jurisdictional limit, but whether or not it is likely that the plaintiff will recover damages in excess of that limit in the event that he is successful in the proceedings.
[3]
THE LEGISLATION
Section 140 of the Act is in the following terms:
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.
Also relevant to my determination are the provisions of ss 56 and 58 of the Act which are in the following terms:
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.
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)--
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a
"relevant interest" in civil proceedings if the person--
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
……
58 Court to follow dictates of justice
(1) In deciding--
(a) whether to make any order or direction for the management of proceedings, including--
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court--
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant--
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
[4]
CONSIDERATION
Whilst the procedural history of these proceedings is not determinative of the present application, it is clearly a factor which is relevant. [4] I have already noted the circumstances in which the present application has been made. Those circumstances, for the reasons that I have already given, are somewhat unsatisfactory. In particular, the lateness of the present application is not satisfactorily explained. However, as I have said, such matters are not determinative.
In determining the plaintiff's likely award of damages I am required to take an impressionistic approach. In particular, I am not required to engage in a preliminary trial of the matter, or engage in an individual assessment of each head of damage under which a claim is made. [5]
I have read the medical evidence which is annexed to the affidavit of Mr Moran. I have also read the most recent statement of particulars which has been filed and which is also annexed to Mr Moran's affidavit. It sets out claims for damages for
1. future out of pocket expenses;
2. past gratuitous care;
3. future gratuitous care;
4. future commercial care;
5. past economic loss; and
6. future economic loss.
In addition to that, the plaintiff, if successful, will obviously be entitled to substantial damages for non-economic loss, given his injuries.
As I have said, it is not my function to engage in an individual assessment of each head of damage. However, it is relevant to note that, as particularised, and leaving aside any allowance for non-economic loss, the plaintiff's claim for damages exceeds $2.1 million. Significantly, that claim is based on the medical evidence to which I have referred which, at this point, is entirely unchallenged.
In all of these circumstances, I am satisfied that the test posed by section 140 has been met, and that the order sought should be made.
[5]
COSTS
Although the plaintiff has been successful on the application, it remains the case that he has sought an indulgence of the Court. In those circumstances, it is my view that the appropriate order for costs is that the plaintiff pay the defendant's costs of this application. Counsel for the plaintiff made no submissions in opposition to that course being taken.
[6]
ORDERS
I make the following orders:
1. Pursuant to section 140 of the Civil Procedure Act 2005 NSW, the proceedings numbered 2018/0038224, which have been commenced by the plaintiff in the District Court of New South Wales, are to be transferred to the Supreme Court of New South Wales.
2. I order that the plaintiff pay the defendant's costs of this application.
[7]
Endnotes
At [9].
At [12].
At [14].
Lazare v City of Sydney Council & Ors [2015] NSWSC 1546 at [38].
Younes v QIC Limited trading as Westpoint Blacktown [2012] NSWSC 451 at [45] to [47].
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Decision last updated: 22 April 2020