Hunter (By Her Tutor Kym McBlaine) v Collins

[2013] NSWSC 1443

Supreme Court

New South Wales

Medium Neutral Citation:

Hunter (By Her Tutor Kym McBlaine) v Collins [2013] NSWSC 1443

Hearing dates:

20 September 2013

Decision date:

20 September 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Application to transfer proceedings to the District Court granted.

2. Each party to bear her own costs of the Notice of Motion.

Legislation Cited:

Civil Procedure Act 2005
Motor Accidents Compensation Act 1999

Cases Cited:

Halpin v Lumley General Insurance Limited [2009] NSWCA 372

Category:

Interlocutory applications

Parties:

Catherine Hunter (By Her Tutor Kym McBlaine) (Plaintiff)
Margaret Sophia Collins (Defendant)

Representation:

Counsel:
J de Greenlaw (Plaintiff)
JJ Ryan (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2013/93617

Judgment

1. This is an application by the Defendant to transfer proceedings to the District Court under s 146 of the Civil Procedure Act 2005. The proceedings commenced on 27 March 2013. They are a claim pursuant to the Motor Accidents Compensation Act 1999 in respect of injuries the Plaintiff suffered in an accident on 16 July 2010. Liability is admitted and the only issues are causation and the assessment of damages.

1. From what the parties have told me, the significant issue in the matter is the issue of causation of the Plaintiff's acknowledged cognitive, psychiatric or mental problems. The Plaintiff maintains she suffered a closed head injury in the accident and that that led to the brain injuries from which she now suffers. The suggestion on the Defendant's side is that those brain injuries arise from other matters that pre-date the Plaintiff's accident.

1. The proceedings have had a few directions hearings in this court, the last of which was on 2 August. At that time the Plaintiff said she was ready to take a hearing date but that was opposed by the Defendant who said she wanted the matter to be heard in the District Court.

1. The application therefore has been made later than it might have been in all the circumstances. The Defendant points, however, to the Plaintiff's GCM document, which was only filed on 2 August, that said it was not anticipated there were likely to be any special feature of the Plaintiff's claim that might affect its complexity or the length of the hearing.

1. Section 146 provides that if the Supreme Court is satisfied that the proceedings could properly have been commenced in the District Court, this court may order that the proceedings be transferred to the District Court. Sub-section (4) says this:

Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied:

(a) in the case of a motor accident claim or workplace injury damages claim:

(i) that the amount to be awarded to the Plaintiff, if successful, is likely to be more than $1,000,000, and

(ii) that the case involves complex legal issues or issues of general public importance, or

(b) in any other case:

(i) that the amount to be awarded to the Plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or

(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.

1. The proceedings could always have been commenced in the District Court because that court has unlimited jurisdiction in respect of motor vehicle accidents.

1. The Plaintiff accepts that sub-s (4) appears to impose a mandatory requirement for transfer unless the matters in both sub-paragraphs are established. The Plaintiff accepts there are no complex legal issues or issues of general public importance, but puts her opposition to the transfer on the late application made by the Defendant and particularly by reason of the case management procedures that are available as a matter of course in this court compared with what might be the position if the proceedings are transferred to the District Court.

1. The Plaintiff submits that although sub-s (4) appears to impose a requirement for transfer in those circumstances, the sub-section ought to be read subject to s 56, and draws attention in particular to what was said by the Court of Appeal in Halpin v Lumley General Insurance Limited [2009] NSWCA 372 at 24 and following.

1. I accept on the wording of s 56 itself, particularly sub-s (2), and by reason of what was said by the Court of Appeal in Halpin, that s 56 must be considered when dealing with any power that the court is given under the Act or the Rules.

1. It is suggested by the Plaintiff that if the proceedings are transferred to the District Court, there will be a delay in obtaining a first directions hearing in that court. Such a directions hearing might perhaps be towards the end of this year with the result that any hearing would not be heard perhaps until the middle or later of next year. It is agreed that if the matter remained in this court it is likely to take about five days.

1. If a hearing date were given in this court, it seems likely that the earliest time for a hearing would be April of next year. The Plaintiff's concern is that there is no guarantee that, if the proceedings were transferred to the District Court, there would not be the case management available in this court. That seems to me to be a less significant consideration because, on the Plaintiff's own assertion, this matter was ready for a hearing date when the matter came up for directions on 2 August. The amount of case management that would be required from this point onwards, one would think, would be less than if the matter were in a state of unreadiness.

1. The only remaining consideration, therefore, is when a hearing date might be obtained by reason of the transfer back to the District Court. The evidence is very general about that matter.

1. Even having regard to the provisions of s 56, which concern not only costs but also delay, I am still not persuaded that I should not follow the dictates of s 146(4). It appears to me Parliament has made a clear distinction between motor vehicle claims and work injury claims on the one hand, and other claims that may be brought in either this court or the District Court. In the cases of other types of claims, there is the specific provision for "other sufficient reason" for the matter being heard in this court to be taken into account. The contrast between paragraphs (a) and (b) suggests s 56 has less force when considering this type of application for a motor accident claim or a workplace injury claim.

1. It seems to me it would be open to the Plaintiff to move in the District Court at the earliest opportunity to have an expedited hearing if there is justification for that to happen. I have been told from the Bar Table - and there is some evidence in the affidavit material from the Plaintiff - that the needs of the family of the Plaintiff have become more pressing because of the ongoing care that is required, not only for the Plaintiff herself by the tutor, but also for the Plaintiff's husband who is a disabled person in any event.

1. Nevertheless, it seems to me, the case not involving any complex legal issues or issues of general public importance, the matter ought be transferred to the District Court.

1. I note the Defendant does not press prayer 2 (seeking costs unnecessarily incurred by reason of the proceedings being commenced in this court) in the Notice of Motion.

1. The Defendant seeks costs of the Motion on the basis that the Plaintiff has been unsuccessful. The Defendant resists an order that the costs should be costs in the cause and rightly points to the fact that liability has been admitted, with the result that that would inevitably mean that the Plaintiff would obtain the costs of the Motion. In the circumstances where the Plaintiff has in fact been unsuccessful but that the application was brought at a later stage than it ought to have been, I consider the fairest outcome for costs is each party should bear her own costs of the Motion.

**********

Decision last updated: 10 October 2013