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Engwirda v Robinson

Engwirda v Robinson

Case [2021] NSWSC 253 19 March 2021

Jurisdiction

Transfer of Proceedings

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Engwirda v Robinson [2021] NSWSC 253
Hearing dates: 25 March 2020
Decision date: 19 March 2021
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW), set aside orders (1) and (2) made by the Registrar on 23 January 2020;
(2) Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), transfer proceedings 2019/43048 in the District Court of New South Wales to the Supreme Court of New South Wales;
(3) Costs are reserved.

Catchwords:
PRACTICE AND PROCEDURE – application for review of decision of registrar – whether proceedings ought to be transferred from the District Court of New South Wales to the Supreme Court of New South Wales – whether the claim for damages is likely to exceed jurisdictional limit of the District Court

Legislation Cited:
Civil Liability Act 2002 (NSW), s 15B
Civil Procedure Act 2005 (NSW), ss 56, 58, 140
Supreme Court Act 1970 (NSW), s 121
Uniform Civil Procedure Rules 2005 (NSW), r 49.19

Cases Cited:
Dodd v Wentworth Community Housing Limited [2017] NSWSC 1424
Every v Osborne [2012] NSWSC 1437
Johnstone v State of New South Wales [2006] NSWCA 105
Lazare v City of Sydney Council [2015] NSWSC 1546
Perpetual Limited v Barghachoun [2010] NSWSC 108
Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337
Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 396
Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451

Category: Principal judgment
Parties: Linda Engwirda (Plaintiff/Applicant)
Greg Robinson (Defendant/Respondent)
Representation:
Counsel:
A L McSpedden (Plaintiff/Applicant)
E Eagles (Sol) (Defendant/Respondent)
Solicitors:
Turner Freeman Lawyers (Plaintiff/Applicant)
James Tuite & Associates (Defendant/Respondent)

File Number(s): 2019/350514

Judgment

HIS HONOUR: By notice of motion filed on 19 February 2020, the plaintiff, Linda Engwirda, seeks review of a decision of the Common Law Registrar dated 23 January 2020 to refuse her application to have proceedings in the District Court of New South Wales transferred to this Court, and an order that the proceedings be so transferred.
The plaintiff also sought an order that costs be in the cause. However, at the hearing on 25 March 2020, counsel for the plaintiff noted that this order was no longer pressed and, instead, sought an order that costs be reserved.
The defendant, Greg Robinson, neither consented to, nor opposed, this application for a review, consistent with his position before the Registrar that he neither consented to, nor opposed, the application for transfer of the proceedings.

Background

The plaintiff brought an action in negligence against the defendant, commencing proceedings in the District Court at Newcastle by filing a statement of claim and a statement of particulars on 8 February 2019. The claim is said to arise from injuries suffered by the plaintiff on 13 February 2016, while she was a passenger on board a yacht owned and mastered by the defendant, who is also the plaintiff’s father. The plaintiff alleges that,…

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.

Continue reading Engwirda v Robinson

Details

AGLC: Engwirda v Robinson [2021] NSWSC 253
Case: [2021] NSWSC 253
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case of Engwirda v Robinson involved a party seeking to review a decision made by a registrar. The applicant, Engwirda, sought a transfer of proceedings from the District Court of New South Wales to the Supreme Court of New South Wales. Engwirda's primary contention was that the claim for damages in his case was likely to exceed the jurisdictional limit of the District Court. The matter was brought before the court for a determination on whether the proceedings should indeed be transferred to the Supreme Court.

The legal issues before the court centred around the interpretation of jurisdictional limits and the criteria for transferring proceedings between courts. The court was required to assess whether the claim for damages was likely to exceed the jurisdictional limit of the District Court, which is $750,000. Additionally, the court needed to consider the appropriate forum for the resolution of the claim and whether the transfer was warranted under the relevant provisions of the law.

The court deliberated on the evidence presented regarding the potential amount of damages claimed. It considered the nature of the claims and the arguments advanced by both parties. Ultimately, the court concluded that the claim for damages was indeed likely to exceed the jurisdictional limit of the District Court. Given this, the court found that the transfer of proceedings to the Supreme Court was appropriate to ensure the matter was heard in the correct forum. The court accordingly granted the application for review and ordered the transfer of the proceedings to the Supreme Court of New South Wales.

Orders