Lamichhane v Plumbcorp Solutions Pty Ltd

[2024] NSWSC 100

Supreme Court

New South Wales

Medium Neutral Citation:

Lamichhane v Plumbcorp Solutions Pty Ltd [2024] NSWSC 100

Hearing dates:

14 February 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Proceedings number 2022/197621 are transferred from the District Court of NSW to the Supreme Court of NSW pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW).

2. Costs of transfer application to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – personal injury proceedings – where risk that plaintiff’s damages will exceed the jurisdiction of the District Court

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 140

Cases Cited:

Johnston v State of New South Wales [2006] NSWCA 105

Restaino v Urban Purveyor Group [2021] NSWSC 1164

Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Shambu Lamichhane (Plaintiff)
Plumbcorp Solutions Pty Ltd (First Defendant)
PJM Group (Second Defendant)
DE Plumbing Pty Ltd (Third Defendant)
J & I Construction (Fourth Defendant)
Balintore Developments Pty Ltd (Fifth Defendant)

Representation:

Counsel:
J Hallion (Plaintiff)
A Puvanendiranathan (First Defendant)
No appearance (Second Defendant)
I Roche (Third Defendant)
No appearance (Fourth Defendant)
M Skelly (Fifth Defendant)

Solicitors:
Bond Legal (Plaintiff)
Turks Legal (First Defendant)
Keystone Lawyers (Second Defendant)
Ian Roche Lawyers (Third Defendant)
Mills Oakley (Fourth Defendant)
Mills Oakley (Fifth Defendant)

File Number(s):

2023/196150

Publication restriction:

Nil

Judgment

1. The plaintiff was injured in a work is accident on 5 June 2018. He was a labourer on a work site employed by the first defendant, but at the time he was working under the direction of the third defendant.

2. The presently named fifth defendant was the owner of the property but a related company to the fifth defendant was the head contractor. Both the fifth defendant and the head contractor are now in liquidation.

3. The plaintiff suffered serious injuries to his l right leg and also his right shoulder. Both required operations and in the case of the shoulder a number of operations.

4. He subsequently developed and was diagnosed with an adjustment disorder, anxiety and depression.

5. There seems to be large agreement in the medical material that I have read that the plaintiff will never be able to work again as a labourer, and there is some considerable doubt that he will be able to work in any light duty or sedentary job, not the least reason for which is that English is not his first language and he has limited English skills.

6. The proceedings were commenced in the District Court in early 2023. As a result of the medical material received, the plaintiff's legal advisors have now become concerned that, at least in the case brought against the third and fifth defendants or an insurer of the fifth defendant, the damages that the plaintiff recovers may exceed the jurisdiction of the District Court, which was at the time of the plaintiff's injury $750,000. For that reason, the plaintiff seeks by summons to have the District Court proceedings transferred to this Court pursuant to section 140(3)(b) of the Civil Procedure Act 2005 (NSW).

7. The relevant principles to be applied when dealing with a transfer application based on the monetary jurisdictional limit of a lower court were summarised by Beech-Jones CJ at CL (as his Honour then was), in Restaino v Urban Purveyor Group [2021] NSWSC 1164 at [5]. That statement of principle picked up what had been said by the Court of Appeal in Johnston v State of New South Wales [2006] NSWCA 105 at [23].

8. In short, it is not for this Court to conduct a mini trial on the damages evidence but to form an overall impression from that evidence about whether it is likely (and “likely” is not to be understood as on the balance of probabilities), that the jurisdictional limit in the lower court will be exceeded. Put another way, the assessment is whether there is a real chance of the plaintiff obtaining a verdict greater than the jurisdictional limit of the lower court: Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337 at [7].

9. I have read the affidavit in support of the summons of Samita Kafle sworn 14 June 2023.

10. Taking the plaintiff's case at its highest, and having regard to the calculations in Ms Kafle's affidavit, I am well satisfied that is it likely that any verdict is likely to exceed the then jurisdiction of the District Court.

11. I have had particular regard to the fact that, as I have said, the evidence tends to suggest that the plaintiff, who is a relatively young man in his early 40's, is not likely ever to work again. His estimated future wage loss exceeds the jurisdictional limit of the District Court. In addition, he has a substantial past wage loss, and damages for care and assistance.

12. The three remaining defendants in the proceedings neither consent to, nor oppose, the transfer.

13. For all of those reasons, I consider that an order should be made transferring the proceedings to this Court.

1. Proceedings number 2022/197621 are transferred from the District Court of NSW to the Supreme Court of NSW pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW).

2. Costs of transfer application to be costs in the cause.

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Decision last updated: 14 February 2024