Arndell v Old Bar Beach Festival Incorporated

[2016] NSWSC 1264

Supreme Court

New South Wales

Medium Neutral Citation:

Arndell v Old Bar Beach Festival Incorporated [2016] NSWSC 1264

Hearing dates:

05 September 2016

Date of orders:

05 September 2016

Decision date:

05 September 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Proceedings No 199567 of 2015 in the District Court of NSW be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

 

2. The plaintiff’s mother, Kathy-Lee Arndell, be reappointed as her tutor.

 

3. That proceedings commended by Mr Paul Cox in the District Court of NSW, being 2014/286417, be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

 

4. Proceedings commended by Mr Jonathan Rowan by way of Statement of Claim filed in the District Court, being 2014/245766, be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

 5. Costs in favour of the defendant.

Catchwords:

PROCEDURE – civil – transfer of proceedings from District Court to Supreme Court – separation of claims previously joined – appointment of tutor

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Amber Christine Arndell (Plaintiff)
Old Bar Beach Festival Incorporated (First Defendant)
Greater Taree City Council (Second Defendant)
Paul Clarendon Cox (Third Defendant)

Representation:

Ms Compton (Plaintiff)
Mr Sheldon (Second Defendant)
Mr Hourigan (Third Defendant)

File Number(s):

2016/00207037

Publication restriction:

None

EX TEMPORE Judgment

1. By summons filed in the Registry of this Court on 7 July 2016, the plaintiff seeks a number of orders, being an order transferring the proceedings from the District Court of New South Wales to this Court, an order separating the plaintiff’s claim from a number of related claims, an order reappointing the plaintiff’s mother as her tutor, and an order for costs to be costs in the cause. The plaintiff relies upon an affidavit of Justin Timothy Stack filed on 7 July 2016 which contains a number of annexures.

2. The plaintiff’s claim is one of a number of claims which arise from an incident on 1 October 2011 when a small light aircraft piloted by Paul Cox collided with a ferris wheel in which the plaintiff was riding as a passenger. The plaintiff suffered no physical injuries but she alleges she has suffered significant mental injury as a result of the collision, injury for which she contends the defendants are liable.

3. Mr Cox, the pilot of the light aircraft, is both a plaintiff and a defendant in related proceedings and there are a number of proceedings on foot as a result of the collision.

4. The plaintiff commenced proceedings initially by her tutor, being her mother, Kathy-Lee Arndell, a tutor having been appointed because of her young age. A statement of claim and a statement of particulars were filed in the District Court on 8 July 2015. Related proceedings have been commenced by the pilot, Mr Cox, and, additionally, by another individual, Mr Jonathon Rowan. Mr Cox commenced proceedings by way of statement of claim in the District Court and Mr Rowan similarly commenced proceedings by way of statement of claim in the District Court.

5. On 9 October 2015 the District Court made an order by consent of the parties that the proceedings commenced by the plaintiff and the proceedings commenced by Mr Cox and Mr Rowan be heard together with evidence on liability in the proceedings to be evidence in the others and vice versa.

6. The plaintiff now seeks to have her claim transferred to the Supreme Court to be dealt with, together with severance from the other related proceedings and the order with respect to her tutor. The last of the orders sought, the order in relation to the tutor, I shall leave to the last.

7. The order as to transfer of proceedings is one which is not particularly controversial. The defendants and the interested parties to the proceedings today have no objection to the transfer of the proceedings to this Court. The application is brought on the basis that the jurisdictional limit of the District Court, $750,000, is potentially inadequate to address the damages that the plaintiff alleges she has sustained. A schedule of damages is annexed to the affidavit of Mr Stack and the schedule of damages refers to a total figure of in excess of $1.4 million, plainly a figure in excess of the jurisdictional limit of the District Court. The question of whether those damages have been sustained and, if so, whether they are in fact the liability of the defendants is of course a live one but on the material filed as annexures to Mr Stack’s affidavit there is at least a basis upon which to conclude that it is possible that any court determining this matter could award damages in a sum in excess of the District Court’s jurisdictional limits and, accordingly, it is appropriate to transfer the proceedings to this Court to be heard here. I propose to make that order as sought by the plaintiff.

8. The order for severance is an order to which controversy attaches. The defendants and the interested parties all oppose the order severing the related proceedings. The order which is sought would effectively undo the order of the District Court made at either the request or with the consent of the plaintiff to have the matters travel and be heard together. The explanation from the plaintiff as to why her earlier position has changed and why she now seeks to have her matter divorced from the other proceedings appears really to be confined to a suggestion that there may be some waste of time in her case waiting effectively whilst matters connected exclusively with the other proceedings are dealt with. There does not appear to be any more substantial reason advanced for the application to sever the various proceedings.

9. In opposing the making of that order the defendants all submit that the issues to be determined across the related proceedings have much in common, and the bulk of the evidence is in common to the various proceedings, at least insofar as liability is concerned. It is the uniform position of the defendants and the interested parties that any waste of time or resources would be exacerbated by severance rather than the contrary. Mr Cox, the third defendant, has filed and relies upon an affidavit of John William Walker of 24 August 2016 (excluding paragraph 24) and which sets out some matters relevant to the potential determination of the matter. I have had regard to that evidence.

10. Without, in the course of a duty list, setting out the detail of the evidence relied upon by the parties, it seems to me that the most sensible disposition of this matter is as previously regarded by all of the parties and as ordered by the District Court, that is, by the proceedings transferring to be heard together. Certainly issues of liability arise from what I anticipate will be largely common evidence and there will be a significant saving of court time in hearing the matters together. I accept that there may be some time lost to the plaintiff in preparation and presentation of her case but the overall benefit to the justice system and to the parties as a whole lies in the matters being dealt with together. There would be very significant duplication in evidence were the matters separated. There would also be a prospect of findings and conclusions in one case which may not be consistent with findings and conclusions in the others. The prospect of estoppel type issues arising is plain.

11. It seems to me that the most efficient manner of disposing of these cases is by dealing with them at one hearing where the evidence common to all cases can be heard once, and witnesses who have to testify can testify once as opposed to doing so a number of times. Accordingly, I do not propose to accede to the plaintiff’s application to separate her matter from the balance of the proceedings. It will remain together as previously ordered to be so by the District Court.

12. The third aspect of the plaintiff’s summons is to reappoint her mother as her tutor. Kathy-Lee Arndell was originally the plaintiff’s tutor because she was under the age of 18 when her statement of claim was filed. When she attained the age of 18 her lawyers considered it appropriate that a tutor was no longer required and the plaintiff then prosecuted her statement of claim in her own name.

13. In the course of preparation of the claim, the plaintiff has obtained evidence principally of a psychiatric nature from doctors who have examined her and a range of symptoms of mental illnesses have been described in evidence which is produced by Mr Stack in his affidavit. The mental impairment referred to in the evidence is such that there is plainly a basis for a tutor to be involved and it would appear to be in the plaintiff’s interests to have the intervention and assistance of a tutor rather than to be obliged herself to deal with the minutiae of prosecuting this matter. Her mother has in the past been an appropriate person and prima-facie appears to be so again in that she would have her daughter’s best interests at heart and be in a position to act for her. Accordingly having regard to the evidence of mental issues suffered by the plaintiff I propose to grant the application of the plaintiff to reappoint her mother to be her tutor.

14. I make the following orders:

1. Proceedings No 199567/2015 in the District Court of NSW be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

2. The plaintiff’s mother, Kathy-Lee Arndell, is to be reappointed as her tutor.

3. Proceedings commenced by Mr Paul Cox in the District Court of NSW, being No 2014/286417, be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

4. Proceedings commenced by Mr Jonathon Rowan by way of statement of claim filed in the District Court, being No 2014/245766, be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act2005 (NSW).

Costs

15. Application has been made on behalf of Mr Cox and the Greater Taree City Council for the costs of today’s proceedings in dealing with the summons before the Court. The application is on the basis that the application to separate the proceedings is one which has no merit, never had any merit and should not have been brought and accordingly costs ought to be made in favour of those defendants.

16. I have heard from everyone interested in the issue of costs. I was initially minded to make costs simply costs in the cause but I think there is merit in what has been put, that is, we have now had something like an hour of court time, and of course the parties have been put to the cost and expense of counsel to appear. Mr Cox has been put to the cost and expense of preparing and filing evidence to deal with the summons in circumstances where it is difficult to see the basis upon which the application to separate the proceedings was made.

17. In circumstances where it was the plaintiff who originally sought to have the proceedings joined, where the proceedings were joined by consent, and where consent orders were made because there was a clear and sensible basis for the matters to run together, it is difficult to see the basis upon which the plaintiff has changed her position with respect to that and sought to have severance, other than what has been advanced, which seems to be a claim of some fairly limited benefit in terms of time and cost in severing the proceedings. It must have been plain that the limited benefit that might have accrued to the plaintiff would be swamped by the duplication of costs to the court and the other parties in severing the proceedings.

18. There being no proper or adequate explanation for the application to sever and it being an application with no obvious merit whatsoever I am minded to make the order that is now sought, being costs to the defendants for the summons heard today, and I make that order.

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Decision last updated: 12 September 2016