Jajieh v Woolworths Ltd (No 2) - [2010] NSWDC 253

CITATION: Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253

HEARING DATE(S): 5 November 2010

JUDGMENT DATE:
8 November 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. The jurisdiction of the court to deal with this matter is extended to $766,793, pursuant to s 51(2)(b) of the District Court Act 1973;
2. The orders made on 26 October 2010 are varied with the effect that in lieu of the judgment amount of $750,000, judgment for the plaintiff is entered in the amount of $766,793;
3. The defendant is to pay the plaintiff’s costs thrown away by the vacation of the hearing date of 22 March 2010;
4. The order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis is confirmed;
5. The defendant is granted a temporary stay of the judgment for $766,793 for 28 days conditional upon the defendant filing a notice specifying its grounds of appeal;
6. Questions concerning the continuation of, and any terms for the continuation of, the temporary stay so ordered, is to be determined by order of the Court of Appeal.

CATCHWORDS: PROCEDURE – whether the jurisdiction of the court should be extended beyond $750,000 pursuant to s 51(2)(b) of the District Court Act 1973 - COSTS – whether indemnity costs indicated - STAY OF PROCEEDINGS – whether stay indicated – terms of temporary stay pending appeal

LEGISLATION CITED: Civil Liability Act 2002, ss 15B, 16
Civil Procedure Act 2005, s 98
District Court Act 1973, ss 51(2)(b), 51(4)
Uniform Civil Procedure Rules 2005, rr 42.1, 42.2

CASES CITED: Adeels Palace Pty Ltd v Moubarack; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685
Andrews v John Fairfax & Sons [1979] 2 NSWLR 184
Bridges v Consolidated Press Ltd, NSW Court of Appeal, unreported, 16 June 1970
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Jajieh v Woolworths Ltd [2010] NSWDC 239
NSW Bar Association v Stevens [2003] NSWCA at [83]
Penrith Whitewater Stadium Ltd v Lesvos Pty Limited [2007] NSWCA 103
Richards v Cornford [2010] NSWCA 99
Rouse v Shepherd (No2) [1994] 35 NSWLR 277
Woolworths Limited v Strong & Anor [2010] NSWCA 282

PARTIES: Diane Jajieh (Plaintiff)
Woolworths Ltd (Defendant)

FILE NUMBER(S): 2009/335833

COUNSEL: Mr T Boyd with Mr J Cairn (Plaintiff)
Mr D Ronzani (Defendant)

SOLICITORS: Kheir & Associates (Plaintiff)
Bartier Perry (Defendant)

JUDGMENT

Applications by the parties

1. On 26 October 2010 judgment was given in favour of the plaintiff in these proceedings in the amount of $750,000 : Jajieh v Woolworths Ltd [2010] NSWDC 239. On that occasion, an order was made granting the parties liberty to apply if further orders were required. Each party now applies to seek further orders.

2. The plaintiff seeks an order pursuant to s 51(2)(b) of the District Court Act 1973 [“DC Act”] to extend the jurisdiction of the court beyond $750,000 in this matter to facilitate the entry of…

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: [2010] NSWDC 253
Decision Date: 8 November 2010

CaseChat Overview and Summary

The plaintiff, Jajieh, initiated proceedings against Woolworths Ltd in the District Court of New South Wales, claiming damages for personal injury and other losses. The primary dispute centred on the jurisdiction of the court, the quantum of damages, and the costs incurred. Jajieh sought an extension of the court's jurisdiction to hear claims over the $750,000 limit, as well as indemnity costs and a temporary stay of the proceedings pending an appeal. Woolworths Ltd opposed Jajieh’s claims, arguing that the court should not extend its jurisdiction and that any costs awarded should be on the ordinary basis.

The court addressed several legal issues, including whether the jurisdiction of the court should be extended beyond the statutory limit of $750,000 under section 51(2)(b) of the District Court Act 1973, whether indemnity costs were warranted, and whether a stay of proceedings was justified pending an appeal. The court found that the jurisdiction should indeed be extended to accommodate the amount claimed by Jajieh. It also concluded that while the costs should be on the ordinary basis, the defendant would bear the costs thrown away by vacating the hearing date. The court granted a temporary stay of the proceedings, conditional upon the defendant filing a notice specifying the grounds of appeal.

Following the court's reasoning, the orders made were varied to reflect the correct judgment amount of $766,793, rather than the initial $750,000. The defendant was directed to pay the plaintiff’s costs thrown away due to the change in the hearing date. Additionally, a temporary stay of the proceedings was granted for 28 days, contingent on the defendant specifying its grounds for appeal. The further continuation of this stay and any related terms would be determined by the Court of Appeal.

Orders

Orders of the court

1. The jurisdiction of the court to deal with this matter is extended to $766,793, pursuant to s 51(2)(b) of the District Court Act 1973;

2. The orders made on 26 October 2010 are varied with the effect that in lieu of the judgment amount of $750,000, judgment for the plaintiff is entered in the amount of $766,793;

3. The defendant is to pay the plaintiff’s costs thrown away by the vacation of the hearing date of 22 March 2010;

4. The order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis is confirmed;

5. The defendant is granted a temporary stay of the judgment for $766,793 for 28 days conditional upon the defendant filing a notice specifying its grounds of appeal;

6. Questions concerning the continuation of, and any terms for the continuation of, the temporary stay so ordered, is to be determined by order of the Court of Appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253
HEARING DATE(S):	5 November 2010
JUDGMENT DATE:	8 November 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The jurisdiction of the court to deal with this matter is extended to $766,793, pursuant to s 51(2)(b) of the District Court Act 1973; 2. The orders made on 26 October 2010 are varied with the effect that in lieu of the judgment amount of $750,000, judgment for the plaintiff is entered in the amount of $766,793; 3. The defendant is to pay the plaintiff’s costs thrown away by the vacation of the hearing date of 22 March 2010; 4. The order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis is confirmed; 5. The defendant is granted a temporary stay of the judgment for $766,793 for 28 days conditional upon the defendant filing a notice specifying its grounds of appeal; 6. Questions concerning the continuation of, and any terms for the continuation of, the temporary stay so ordered, is to be determined by order of the Court of Appeal.
CATCHWORDS:	PROCEDURE – whether the jurisdiction of the court should be extended beyond $750,000 pursuant to s 51(2)(b) of the District Court Act 1973 - COSTS – whether indemnity costs indicated - STAY OF PROCEEDINGS – whether stay indicated – terms of temporary stay pending appeal
LEGISLATION CITED:	Civil Liability Act 2002, ss 15B, 16 Civil Procedure Act 2005, s 98 District Court Act 1973, ss 51(2)(b), 51(4) Uniform Civil Procedure Rules 2005, rr 42.1, 42.2
CASES CITED:	Adeels Palace Pty Ltd v Moubarack; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685 Andrews v John Fairfax & Sons [1979] 2 NSWLR 184 Bridges v Consolidated Press Ltd, NSW Court of Appeal, unreported, 16 June 1970 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Jajieh v Woolworths Ltd [2010] NSWDC 239 NSW Bar Association v Stevens [2003] NSWCA at [83] Penrith Whitewater Stadium Ltd v Lesvos Pty Limited [2007] NSWCA 103 Richards v Cornford [2010] NSWCA 99 Rouse v Shepherd (No2) [1994] 35 NSWLR 277 Woolworths Limited v Strong & Anor [2010] NSWCA 282
PARTIES:	Diane Jajieh (Plaintiff) Woolworths Ltd (Defendant)
FILE NUMBER(S):	2009/335833
COUNSEL:	Mr T Boyd with Mr J Cairn (Plaintiff) Mr D Ronzani (Defendant)
SOLICITORS:	Kheir & Associates (Plaintiff) Bartier Perry (Defendant)