Johnstone v State of New South Wales - [2006] NSWCA 105

NEW SOUTH WALES COURT OF APPEAL

CITATION: Johnstone v State of New South Wales [2006] NSWCA 105

FILE NUMBER(S):
40723/05

HEARING DATE(S): 18 May 2006

DECISION DATE: 18/05/2006
EX TEMPORE DATE: 18/05/2006

PARTIES:
Adam Johnstone - Claimant
State of New South Wales - Opponent

JUDGMENT OF: Giles JA Santow JA McColl JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 12041/05

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:
D T Kennedy SC & S A Gardiner - Claimant
G Giagios - Opponent

SOLICITORS:
Lough Wells Duncan, Wollongong - Claimant
Crown Solicitor's Office - Opponent

CATCHWORDS:
Removal of District Court proceedings to Supreme Court - bar in s 145(2) District Court Act unless judge satisfied amount awarded to plaintiff would be likely to exceed $750,000 - judge not satisfied - no error in applying that test - not required to arrive at complete assessment - sufficiently explained decision - decision open on evidence - leave to appeal refused. ND

LEGISLATION CITED:

DECISION:
Extend time for applying for leave to appeal. Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40723/05
SC 12021/05
GILES JA
SANTOW JA
McCOLL JA
Thursday 18 May 2006

JOHNSTONE v O’NEIL & ORS

Judgment

GILES JA: This is an application for leave to appeal from the dismissal by Barr J of an application to remove from the District Court to the Supreme Court the claimant’s proceedings against the opponents. In fact the only opponent is the State of New South Wales, and an order has been made which will permit the record to be regularised. The claimant also applies for an extension of time within which to bring the application.
It appears that the claimant filed a holding summons for leave to appeal in due time, and was about two weeks late in filing the summons for leave to appeal. The opponent, as I will now revert to the singular, formally submitted that an extension of time should not be granted. There was no explanation for the delay, but in the circumstances it seems to me that a two week delay can be excused without an explanation (although that will not always be the case). I would be prepared to grant the extension of time.
However, in my opinion leave to appeal should not be granted, and in the circumstances I think it appropriate to give more full reasons for coming to that conclusion than might normally occur.
The claimant alleges that on 26 August 1997 he was arrested without reasonable cause and taken into custody, and was assaulted and beaten by the arresting officers. In proceedings in the District Court commenced by a statement of claim filed on 19 September 2001 he claimed damages for wrongful arrest, false imprisonment and assault and battery, including aggravated and exemplary damages.
A hearing in late 2003 was vacated. In early 2004 the claimant applied to have the proceedings transferred to the Supreme Court on the ground that the damages awarded would be likely to exceed $750,000. The application was made pursuant to s 145 of the District Court Act 1973, since repealed, which at the time provided:
”145 Transfer of proceedings to Supreme Court
(1)Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit.
(2)An action for damages in respect of personal injury or death (other than a motor accident claim or work injury damages claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.”
The application was heard by a Registrar on 15 July 2004, and was dismissed. On 11 October 2004 the proceedings were set down for hearing to commence on 23 May 2005.
On 16 May 2005 the claimant filed a summons again applying to have the proceedings transferred to the Supreme Court on the ground that the damages awarded would be likely to exceed $750,000. The application was heard by Barr J as a matter of urgency on 19 May 2005, and was dismissed.
The claimant thereafter applied for leave to appeal and an extension of time as I have earlier indicated. The application was heard as a so-called wrapped up application, on full submissions as if an appeal.
The claimant relied essentially on three grounds.
First, the claimant submitted that the judge had applied the wrong test in deciding the application made to him.
The judge’s reasons concluded:
“It seems to me to be quite unlikely that the plaintiff would recover anything like the $1.6 million calculated by counsel. More importantly for present purposes it seems unlikely to me that he would recover any sum in excess of $750,000”.
From this his Honour was directing his mind to the question posed by s 145(2) as a bar to removal of the proceedings. If the claimant’s proceedings were “an action for damages in respect of personal injury or death”, his Honour was correct to do so. His Honour was not satisfied that the question posed by s 145(2) should be answered that he was satisfied, and accordingly he declined the application.
The claimant submitted that his Honour erred because the test which his Honour should have applied was that to be found in Ex parte Delponte; re Thiess Bros Pty Ltd (1965) NSWR 1468 at 1469, where Asprey J said:
“I think that if a person has, as the plaintiff alleges he has, a cause of action based upon reasonable ground which would entitle him to be compensated beyond the statutory figure permitted in the District Court, then he should be, in ordinary circumstances, permitted to have that cause of action adjudicated upon by the appropriate tribunal.”
Those words were spoken of s 47 of the District Court Act 1912, which gave power to remove proceedings from the District Court to the Supreme Court but did not qualify the power in the manner of s 145(2). In my opinion they are not to the point of the judge’s decision. The judge was obliged to direct attention to the words of s 145(2), and to the question whether he was satisfied that the amount to be awarded to the claimant, if successful, would be likely to exceed $750,000.
The claimant also relied on words used by Master Greenwood in Bowditch v Hoey (6 February 1997 unreported). The Master said that “the fact that there is evidence to support the plaintiff’s claim must, generally speaking, be the yardstick against which the plaintiff’s claim is measured”, and acted upon the view that if the plaintiff were successful in his claim “it is possible that he could obtain a verdict in excess of $250,000.”
Bowditch v Hoey was also decided prior to s 145 taking its present form, and prior to the question posed by s 145(2) as a bar to removal of the proceedings. What the Master said is equally not in point to the judge’s decision.
The submissions made to the judge were before us. The claimant there submitted that the order for removal should be made “on the basis that the Court would be satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed $750,000.” He appears to have accepted that the proceedings were an action for damages in respect of personal injury or death, and the application before the judge do not seem to have raised whether, in accordance with the last words of s 145(2), there was other sufficient reason for trying the action in the Supreme Court. Damages in respect of personal injury or death were undoubtedly the principal basis of the proceedings, the claimant’s calculation of the damages of $1.6 million to which the judge referred being framed in the conventional manner appropriate to damages for non-economic loss, economic loss and out of pocket expenses.
Perhaps there could have been debate over the application of s 145(2), or over other sufficient reason for trying the action in the Supreme Court, but there was not. The judge decided the question posed for his decision, and decided it adversely to the claimant. In my opinion, in these circumstances there is no occasion for granting leave to appeal on the basis that the judge applied the wrong test.
Secondly, the claimant submitted that the judge failed to give sufficient reasons for his conclusion earlier set out.
The evidence before the judge was in the main medical reports which had been before the Court in July 2004. There was additional evidence, a report of Dr Clark and some tax returns and some assertions on information and belief by the claimant’s solicitor going to the claimant’s past and intended working history.
The judge referred in his reasons to the principal items in the claimant’s calculation of damages. He expressed the view for the first series of figures that they struck him as exaggerated, and as to future economic loss and perhaps more generally said that it depended on the evidence of the psychiatrists. There were psychiatric reports, not entirely consistent, before him. As to them he said -
“I have read their reports carefully and their evidence does not impress me. One real possibility that arises is that if he is able to show that he is entitled to damages and that if he shows that his present psychiatric conditions stem in any way from the incident relied on he may, because of his personality, be facing a closed period claim or a heavy discount to allow for the probability that some other incident may have led to the disability he claims to have.”
The judge then stated his conclusion. He was dealing with the application as a matter of urgency, and in the circumstances could not be expected to give extensive reasons. Plainly he was not to engage in an exercise of complete assessment, but was to arrive at a likelihood, and of necessity he had to do so to an extent as a matter of impression, albeit founded on the evidence before him. The judge did this and, in my opinion, he sufficiently explained why he did not accept the suggested assessment of $1.6 million.
It was submitted that the judge should have gone to each of the items in the assessment, and stated his own assessment in substitution for that proposed on behalf of the claimant, so that it was demonstrated quasi-mathematically that the threshold of $750,000 was not achieved. I do not think that is correct. The question for the judge was not an assessment of the individual components of a damages claim, but rather the broader question of whether it appeared likely to him that if the claimant were successful his damages would exceed $750,000. In my opinion the judge’s reasons, although brief, sufficiently disclosed why he came to his conclusion that it seemed unlikely. I do not think that there is insufficiency of reasons warranting leave to appeal.
Thirdly, the claimant submitted that the judge was in error in the view as to likelihood to which he came. We were taken to particular portions of the evidence before the judge, and I have read the whole of the materials. In my opinion the view to which the judge came was entirely open to him, and it is not one with which I would be inclined to disagree. Again, I do not think a grant of leave to appeal is warranted.
Accordingly, although I would extend the time for applying for leave to appeal, in my opinion the application for leave to appeal should be dismissed with costs.
SANTOW JA: I agree.
McCOLL JA: I also agree.
GILES JA: That will therefore be the order.

LAST UPDATED: 24/05/2006