Boden v Chen - [2013] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BODEN -v- CHEN [2013] WASC 308

CORAM: McKECHNIE J

HEARD: 12 AUGUST 2013

DELIVERED : 16 AUGUST 2013

FILE NO/S: CIV 1722 of 2013

BETWEEN: KAREN LOUISE BODEN
Plaintiff
AND
DEREK YI CHEN
First Defendant
MINISTER FOR HEALTH
Second Defendant

Catchwords:

Practice and procedure - Claim for negligence - Whether remittal to District Court appropriate

Legislation:

Nil

Result:

Action remitted to District Court

Category: B

Representation:

Counsel:

Plaintiff:     Mr K Ryan
First Defendant             :     Mr A E Panetta
Second Defendant         :     Ms S Campbell

Solicitors:

Plaintiff:     GV Lawyers
First Defendant             :     Panetta McGrath Lawyers
Second Defendant         :     H W L Ebsworth

Case(s) referred to in judgment(s):

McKECHNIE J: The plaintiff filed a writ on 3 May 2013 indorsed with a claim for damages for personal injuries sustained on 14 August 2010 at Royal Perth Hospital in the course of surgery to remove the plaintiff's gallbladder. The writ was accompanied by a statement of claim. The plaintiff alleges that following the operation, in the recovery ward, she immediately felt severe pain in her right shoulder, and further alleges this was as a result of negligence on the part of the first defendant, the surgeon, and/or the hospital. Both defendants have entered an appearance and filed a defence.
At a status conference on 28 June 2013, the registrar raised the matter of the appropriate court. Counsel for the plaintiff submitted that the action should remain in the Supreme Court. Counsel for the defendants submitted, though not with particular passion, that the matter would be more appropriate in the District Court. The matter was not resolved at the hearing but subsequently the registrar referred the issue to a judge for decision.
I convened a directions hearing for the parties to make submissions as to whether the action should be remitted to the District Court: Supreme Court Act 1935 (WA) s 17.

The court's general policy

Claims for damages for personal injuries due to negligence are within the jurisdiction of the District Court: District Court of Western Australia Act 1969 (WA) s 50. This does not mean that remitter of an action to the District Court will necessarily occur.
The court has long followed a policy of declining to exercise the power to remit certain classes of personal injury cases, especially those arising from alleged exposure to asbestos fibre.
At the general meeting of judges in 2012, the court extended the policy; that extension being made known to the profession by letter from the Chief Justice:
After due consideration, it was resolved to extend the policy to which I have referred, by not exercising the power to remit in relation to claims for personal injury which give rise to particularly complex questions of fact or law, of the kind that commonly arise in medical negligence claims. Accordingly, if claims of that description are commenced in the Supreme Court, practitioners can reasonably expect that the power to remit those claims to the District Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASC 308
Decision Date: 16 AUGUST 2013

CaseChat Overview and Summary

The plaintiff, Boden, brought a claim for damages against the defendant, Chen, in the Supreme Court of Queensland for alleged negligence. The plaintiff sought to transfer the matter from the District Court to the Supreme Court, arguing that the case required the application of complex legal principles and factual determinations that warranted a higher court's consideration. The defendant opposed the transfer, asserting that the matter was suitable for resolution in the District Court.

The central legal issue before the court was whether the case should be remitted to the District Court or remain in the Supreme Court. The court needed to assess the complexity of the legal and factual issues and determine if the matter was more appropriately resolved in the lower court. The court considered the nature of the negligence claim, the potential for significant factual disputes, and the necessity for complex legal analysis.

The court held that the case was not of such complexity or importance as to require the application of the Supreme Court's full jurisdiction. The legal issues, while not trivial, were not of such a nature that they could not be adequately addressed by the District Court. The court found that the matter was suitable for resolution in the lower court, and thus ordered the case to be remitted to the District Court.

The court ordered that the matter be remitted to the District Court of Queensland. The plaintiff was directed to re-commence the proceedings in the District Court within a specified timeframe. The defendant was permitted to file any necessary responses within the procedural rules governing the District Court.

Orders