Chilcott (formerly Smith) v KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village

[1999] NSWSC 633

CITATION:	Chilcott (formerly Smith) v KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village [1999] NSWSC 633
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	20495/98
HEARING DATE(S):	16 June 1999
JUDGMENT DATE:	25 June 1999
PARTIES :	Sandra Chilcott (A/P) KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village (D/R to one motion; A to second motion)
JUDGMENT OF:	Newman J

COUNSEL :	A S Morrison SC/R J Wright (A/P) A R Ashburner (D/R)
SOLICITORS:	Thomas J Goudkamp of Stacks the Law Firm with Goudkamp Mahony (A/P) Ferguson Holz (D/R)
CATCHWORDS:	Pleading; Plea in bar; Transfer of proceedings from District Court to Supreme Court
ACTS CITED:	Motor Accidents Act 1988 District Court Act 1973 Limitations of Actions Act 1974 (QLD) Choice of Law (Limitation Periods) Act 1993
CASES CITED:	Packer v Meagher, [1984] 3 NSWLR 486 Fowler v Renmark & Paringa District Hospital Inc, (1988) 51 SASR 506 China Ocean Shipping Co Ltd v P S Chellaram & Co Ltd, (1990) 28 NSWLR 354
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN J

FRIDAY, 25 JUNE 1999

20495/98 - CHILCOTT (formerly Smith) v KBRV RESORT OPERATIONS PTY LTD t/as KINGFISHER BAY RESORT & VILLAGE

JUDGMENT

1    HIS HONOUR: These are two Notices of Motion brought on behalf of both the plaintiff and the defendant.

2    The plaintiff’s Motion seeks orders:

1. That the document described as a Notice of Discontinuance of Proceedings in the District Court of New South Wales bearing plaint number 5777 of 1998 and dated 11 November 1998 and filed 12 November 1998 be declared a nullity.
2. That the said District Court proceedings bearing plaint number 5777 of 1998 be transferred to this Court.

3. That the defence be struck out.

3    On the other hand the defendant’s Motion seeks summary judgment for the defendant. Alternatively, the defendant seeks that there be a separate trial to determine issues raised by the defence in reply filed and that that trial be heard concurrently with the Notice of Motion. As a further alternative the defendant seeks that the Statement of Claim be struck out with costs.

4 The plaintiff alleged that she suffered personal injuries in a road accident in Queensland on 5 September 1995. Because she resides within New South Wales and decided to take action within this State, she gave notice in accordance with the provisions of the Motor Accidents Act 1988.

5    On 21 July 1997 the defendant admitted breach of duty of care.

6 The plaintiff commenced proceedings in the District Court of this State on 11 August 1998. These proceedings were commenced in error because s 47 of the District Court Act, as it then stood, did not extend the District Court’s jurisdiction to hear actions of this type where the cause of action arose outside the state of New South Wales.

7    On 14 September 1998 the defendant’s solicitor wrote to the plaintiff’s solicitor advising of the fact of want of jurisdiction in the District Court and made the following request and representation:

“Please discontinue the action. The claim should either be brought in Queensland or in the Supreme Court of New South Wales.”

8    The representation made by the defendant’s solicitor as to where jurisdiction might lie was correct.

9    The defendant’s solicitor, having not received a reply to this letter, wrote again, on 5 November 1998. The letter included the following statement:-

“Given that you have commenced in the wrong forum and it is in the interest of all parties that this be rectified as soon as possible, we would appreciate receiving your advice as to your intentions regarding these proceedings.”

10    The letter ended with a warning that unless they were so advised by the plaintiff’s solicitor within fourteen days, the defendant would move to strike out the proceedings for want of jurisdiction.

11    On 11 November 1998 the plaintiff’s solicitor replied as follows:

“We do intend to discontinue the proceedings in the District Court immediately, and commence proceedings in the Supreme Court should the matter remain unresolved after the Settlement Conference on 10 December 1998.”

12 On 12 November 1998 the plaintiff filed a document purporting to be a discontinuance of the proceedings in the District Court. The form of the document did not comply with Pt 18 r 1 of the District Court Rules because there was no certificate from the plaintiff’s solicitor that he did not represent any other person. Leave of the court was also not sought to withdraw.

13    The document was not defective in that it did not seek the consent of the defendant because at the time the defendant had not filed an appearance in the District Court and thus had no address for service.

14    While there was no issue in this case that the plaintiff’s solicitor did not represent any other party other than the plaintiff, the fact of the matter is that the Notice filed was defective because the plaintiff’s solicitor did not certify that this was the fact as required by the relevant rule.

15    During the course of the settlement conference adverted to in the plaintiff’s letter of 11 November 1998, the defendant’s solicitor indicated to the plaintiff’s representative that it was the defendant’s intention to rely upon the plaintiff’s claim being statute barred. The plaintiff commenced proceedings in this Court on 23 December 1998.

16 In a defence filed on 21 January 1999 the defendant pleaded that the proceedings were statute barred pursuant to s 11 of the Limitation of Actions Act 1974 (QLD).

17    Section 11 of the Queensland Act limits the time in which a claim for damages for negligence for personal injuries to a period of three years from the date on which the cause of action arose.

18 Section 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) is in the following terms:

“Section 5 Characterisation of Limitation Laws
If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.”

19 There was no dispute that had this case been first commenced in New South Wales by way of Statement of Claim filed on 23 December 1998 that by virtue of s 5 of the Choice of Law (Limitation Periods) Act 1993, s 11 of the Limitations of Actions Act (QLD) would apply and that the plaintiff’s action would in fact, be statute barred.

20    By way of reply the plaintiff having recited the relevant facts, pleaded that the defendant was estopped by its conduct from relying upon the defence that the plaintiff’s claim was statute barred.

21    The plaintiff’s contention in the matter that the defendant could not rely upon its defence that the plaintiff’s action was statute barred was put on two grounds:

1. that the Notice of Discontinuance in the District Court for the reasons outlined above, being ineffective, there is a proceeding capable of being transferred to this Court pursuant to s 145(1) of the District Court Act 1973.

2. alternatively it was put that it was open to the plaintiff to seek leave from that court to have the Notice of Discontinuance withdrawn. I should add that no attempt has been made to activate this latter procedure.

22 Accordingly, so the argument goes if the Notice of Discontinuance is invalid there are still proceedings on foot in the District Court, albeit proceedings which the court cannot hear or dispose of but if the action is transferred to this Court by virtue of Pt 74(1) of the Supreme Court Rules the jurisdictional problem which arises in relation to the proceedings being before the District Court is cured.

23 Pt 74(1)(a) of the Rules states relevantly that where a procedure is removed into this Court subject to the Act under which the removal or transfer was made, this Court shall proceed as if the proceedings had been originally commenced here and as if the same steps had been taken in this Court had been taken in any other court in which the proceedings were pending.

24 Thus the plaintiff says that if the proceedings were removed to this Court the Notice of Discontinuance being a nullity, the proceedings would be deemed to have commenced in this Court on 11 August 1998 that is, within the time limit of three years prescribed by s 11 of the Limitation of Actions Act (QLD). Reliance in this regard was placed upon what had fallen from Hunt J in Packer v Meagher [1984] 3 NSWLR 486.

25    Packer v Meagher is authority for the proposition that where a plaintiff’s application to withdraw a Notice of Discontinuance is done so in a situation where it amounts to an abuse of process may be struck out even if the plaintiff has made an application for leave to withdraw the subject notice. See per Hunt J at 500.

26 Further reliance was placed by the plaintiff upon a decision by Cox J in the Supreme Court of South Australia in Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506. That was a case where a Notice of Discontinuance was made in error. There Cox J held there was no good reason for treating a Notice of Discontinuance as any different from any other step in a proceedings.

27    Under the South Australian rule the court has power to permit any step in the proceedings to be withdrawn and thus Cox J was of the view that as it had been filed in error the learned Acting Master who had exercised his discretion to allow the Notice of Discontinuance to be withdrawn had not erred in exercising his discretion.

28    It seems to me that neither of these decisions are of any more assistance in this case. The Notice of Discontinuance was not made in error - nor was it an inappropriate step in the proceedings and could not in any way be described as an abuse of process.

29    The fact was that the matter could not proceed to finality in the District Court and that the filing of a valid Notice of Discontinuance was an entirely appropriate step for the plaintiff’s solicitor to take.

30    However, the Notice of Discontinuance which was filed was not an appropriate Notice, it being defective as I have already pointed out because it contained no certification as is required by the Rules that the plaintiff’s solicitor is not acting for any other party in the proceedings.

31 Accordingly, I am of the view that the proceedings in the District Court are still on foot albeit that if pursued in that forum would come to an unsuccessful conclusion from the plaintiff’s point of view. Because this Court does have jurisdiction it seems to me that this is a matter where it is appropriate for an order to be made that the matter be transferred to this Court. See s 145(2) of the District Court Act, that is there is other sufficient reason for trying the action in the Supreme Court.

32    Accordingly, I am of the view that the Notice of Discontinuance filed in the District Court being nugatory and the proceedings are thus in my view, still on foot in that court, the plaintiff should succeed in its application to have the matter transferred to this Court.

33 The effect of this ruling is that the plea in bar based upon the Limitation of Actions Act cannot succeed because rule 74 cures the problem.

34    I should add that the proceedings commenced by Statement of claim in this Court are otiose because it is the proceedings in the District Court which are transferred by virtue of s 145. It is the pleadings constituted by the District Court’s Statement of Claim which are transferred to this Court.

35    In these circumstances it is not necessary for me to consider the second argument raised on behalf of the plaintiff, namely that the defendant is estopped by its conduct from raising the plea in bar.

36 However, I believe I should indicate that I am of the view that as a consequence of what fell from the Court of Appeal in this State in China Ocean Shipping Co Ltd v P S Chellaram & Co Ltd (1990) 28 NSWLR 354 particularly per Gleeson CJ at 366 and 367 and Kirby P at 379 and 383 that had the plaintiff not succeeded in establishing its first argument I would not have upheld its argument that the defendant was estopped by conduct.

37    As far as costs are concerned the problems in this matter arose because of an error made by the solicitor for the plaintiff. Oddly enough for the reasons I have expressed the situation so far as the plaintiff is concerned was saved by yet another error made by her solicitor, namely the failure to properly frame a Notice of Discontinuance.

38    In these circumstances and as a good deal of the argument before me was directed towards the estoppel point on which I have indicated I would not have found for the plaintiff, I am of the view that in this case the appropriate costs order is that each party pay its own costs.

39    It, of course, follows that for the reasons I have stated I would dismiss the defendant’s Notice of Motion.

40    I direct that the parties should, within seven days from the date of the delivery of these reasons hand up short minutes of order encapsulating the orders which flow from the reasons and findings which I have set out above.

Last Modified: 08/02/1999