Lawson v Jones

[2024] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation:

Lawson v Jones [2024] NSWSC 527

Hearing dates:

03 May 2024

Date of orders:

03 May 2024

Decision date:

03 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) The Summons is dismissed.

(2) The defendant is to pay the costs of the preparation of and the filing of the Summons and affidavit in support.

(3) The plaintiff is to otherwise pay the costs of and incidental to the Summons.

Catchwords:

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings from District Court to Supreme Court – Summons dismissed

Category:

Procedural rulings

Parties:

Scott Lawson (Plaintiff)
Matthew Jones (Defendant)

Representation:

Counsel:
A Hopkins (Plaintiff)
R Perla (Defendant)

Solicitors:
Herbert Weller (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2024/134853

Publication restriction:

Nil

JUDGMENT – DUTY – EX TEMPORE (REVISED)

1. Before me is a Summons seeking an order that proceedings be transferred from the District Court to the Supreme Court. The parties agree that it should be dismissed, but they disagree about what costs order should be made.

2. The plaintiff commenced proceedings alleging negligence on the part of the defendant doctor. In March 2023, the defendant objected, in writing, to the extended jurisdiction of the District Court. In January 2024, the plaintiff’s solicitor advised the Judicial Registrar that it was likely that a Summons to transfer the proceedings would be filed in this court. Events, as they often do, overtook the parties and a mediation occurred in April 2024. That mediation was unsuccessful.

3. I observe that the matter is listed for hearing in about two weeks’ time in the District Court. It is listed for three days.

4. After the failed mediation, at which time it must have been abundantly clear to the defendant that the plaintiff claimed an amount of damages substantially in excess of the jurisdictional limit of the District Court, on 11 April 2024 the plaintiff filed a Summons in this Court, supported by a one page affidavit of Mr Herbert Weller, solicitor, seeking the transfer of the proceedings to the Supreme Court.

5. On 12 April 2024, the solicitors for the defendant wrote to the plaintiff’s solicitor consenting to unlimited jurisdiction of the District Court and provided the plaintiff’s solicitor with a memorandum of consent to that effect. They asked him to execute that document.

6. For a reason unexplained, the consent was not executed by the plaintiff’s solicitor. It is likely to have been an oversight by a solicitor with a busy practice. I observe that on 24 April 2024, without any explanation, the defendant belatedly filed a defence.

7. It was inevitable, in the circumstances, that the Summons would be dismissed today and both Mr Perla, who appears on behalf of the plaintiff, and Mr Hopkins, who appears on behalf of the defendant, agree that it must occur.

8. The extant question is one of costs. In circumstances where it must have been clear to the defendant that the plaintiff was seeking damages well in excess of the jurisdictional limit of the District Court, and when they had expressly not consented to the unlimited jurisdictional limit of the District Court, in my opinion, it was not unreasonable for the plaintiff to file the Summons and the one page affidavit.

9. However, by the day after the filing of the Summons it ought to have been clear to the plaintiff’s solicitor that there was no necessity for the hearing of the Summons because of the consent of the defendant to the unlimited jurisdiction of the District Court.

10. I note the undertaking given by Mr Perla on behalf of his solicitors that they will expeditiously execute the memorandum of consent so that there can be no doubt that each party consents to the unlimited jurisdiction of the District Court in this matter.

11. In those circumstances, I make the following orders:

1. I dismiss the Summons.

2. The defendant is to pay the costs of the preparation of and the filing of the Summons and affidavit in support.

3. The plaintiff is to otherwise pay the costs of and incidental to the Summons.

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Decision last updated: 03 May 2024