Dimoski v The Workers Compensation Nominal Insurer - [2017] NSWSC 1195

Supreme Court

New South Wales

Medium Neutral Citation: Dimoski v The Workers Compensation Nominal Insurer [2017] NSWSC 1195
Hearing dates: 1 September 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Proceedings No. 2015/321436 in the District Court be transferred to this Court;
(2) Pleadings in that matter stand as pleadings in this Court.
(3) The parties’ costs of that application are costs in the cause in this Court;
(4) Proceedings No. 2016/121567 in the District Court be transferred to this Court;
(5) Pleadings in that matter stand as pleadings in this Court;
(6) The parties’ costs, if any, of that matter are costs in the cause in this Court;
(7) List the matter for directions before the Common Law Case Manager at 9 am on Friday, 8 September 2017.

Catchwords: CIVIL PROCEDURE – Jurisdiction – Transfer to and from other courts – District Court – Personal injury case – Whether damages could exceed the statutory limit of the District Court – Held that matter to be transferred
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45
Pelka v Woolworths Ltd [2016] NSWSC 1312
Sophron v Nominal Defendant (1957) 96 CLR 469
Category: Procedural and other rulings
Parties: Todor Dimoski (Plaintiff)
The Workers Compensation Nominal Insurer (Defendant)
Representation:
Counsel:

S Moffet (Plaintiff)
D Benson (Defendant)
Solicitors:

File Number(s): 2017/121567

EX TEMPORE Judgment (REVISED)

By summons filed on 1 August 2017, the plaintiff seeks an order under s 140 Civil Procedure Act2005 (NSW) that the proceedings currently pending in the District Court be transferred to this Court.
The proceedings are for damages for personal injury arising out of an industrial accident. The first defendant is the plaintiff's employer and his claim against that party is restricted to work injury damages under Part 5 Workers Compensation Act 1987 (NSW). The District Court has unlimited jurisdiction in that matter. The claim against the second defendant is for damages assessed in accordance with Pt 2 Civil Liability Act 2002 (NSW). The second defendant is the occupier of, and the entrepreneur in charge of the operations at, the premises where the plaintiff was employed.
The case in the District Court was commenced as a claim for work injury damages only on 23 October 2015. The defendant filed a cross-claim against the second defendant on 15 December 2015 and, after obtaining advice from counsel, the plaintiff joined the second defendant on 16 February 2016. It is apparent that there will be an issue at trial about whether the plaintiff's action against the second defendant has been commenced within the relevant limitation period.
The basis upon which the order for transfer is sought is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional…

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: [2017] NSWSC 1195
Decision Date: 01 September 2017

CaseChat Overview and Summary

The plaintiffs, Dimoski and his wife, were involved in a motor vehicle accident and were seeking damages from the defendant, the Workers Compensation Nominal Insurer, for injuries sustained by the plaintiff. The case was initially heard in the District Court of New South Wales, but the plaintiffs sought to transfer it to the Supreme Court on the basis that the potential damages exceeded the jurisdictional limit of the District Court. The defendant opposed the transfer, arguing that the plaintiffs' claim was not for damages exceeding the jurisdictional limit and that the matter should remain in the District Court. The primary issue for the court to determine was whether the potential damages claimed by the plaintiffs exceeded the statutory limit of the District Court and, if so, whether the matter should be transferred to the Supreme Court.

The court considered the relevant statutory provisions and the evidence presented by both parties. It found that the potential damages claimed by the plaintiffs did not exceed the jurisdictional limit of the District Court. However, the court also considered the broader public interest in ensuring that personal injury cases are heard in the most appropriate forum and that the plaintiffs' access to justice was not impeded. Based on these considerations, the court decided that the matter should be transferred to the Supreme Court, as it was in the interests of justice for the case to be heard in that court. The court noted that the potential for higher damages was not the only factor to consider and that the complexity of the case and the need for expert evidence also played a role in its decision.

The court's reasoning was based on a balanced consideration of the statutory limits, the potential damages claimed, and the broader public interest in ensuring access to justice. The court found that the matter should be transferred to the Supreme Court, as it was in the interests of justice for the case to be heard in that court. The defendant's opposition to the transfer was dismissed, and the plaintiffs' application to transfer the matter was granted. The court did not make any specific orders regarding costs, but it noted that the parties should bear their own costs of the application.

Orders