Marincic v State of New South Wales

[2017] NSWSC 272

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Marincic v State of New South Wales [2017] NSWSC 272
Hearing dates:	16 March 2017
Decision date:	16 March 2017
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), Newcastle District Court Proceedings Number 2015/40-38 are transferred to the Supreme Court of New South Wales. (2) The costs of the matter before me are costs in the cause.
Catchwords:	CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of New South Wales – whether likely that, if successful, amount awarded to the plaintiff will exceed jurisdictional limit of the District Court
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 140, 140(3)(b)(i), 140(3)(b)(ii)
Cases Cited:	Johnstone v State of New South Wales [2006] NSWCA 105 Lazare v City of Sydney Council [2015] NSWSC 1546 Milwood v Graff [2012] NSWSC 753 Pelka v Woolworths Limited [2016] NSWSC 1312
Category:	Procedural and other rulings
Parties:	Adam Marincic (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: R McKessar (Plaintiff) I Harvey (Defendant)
File Number(s):	2017/55507
Publication restriction:	Nil

EX TEMPORE Judgment

Background

1. This application for transfer to this Court of personal injury proceedings commenced in the District Court, pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (the Act), came before me today in the Duty List.

2. Although the position of the defendant was neither to consent to nor to oppose the summons of the plaintiff, I had the assistance of written and oral submissions of both parties, and the matter took some little time to resolve.

3. Its background may be shortly stated. Whilst incarcerated at Grafton Gaol, the plaintiff was assaulted and suffered a serious head injury. As I understand it, there is no dispute that he has suffered permanent cognitive and other impairments as a result.

4. In support of the application, two affidavits of the solicitor for the plaintiff were read. They attach two reports of a consultant neurosurgeon with regard to the plaintiff. They also attach a schedule of damages prepared by the solicitor for the plaintiff that result in a claim for almost $1.4 million.

5. On the evidence placed before me, the defendant has not consented to the jurisdiction of the District Court being expanded beyond $750,000. Counsel for the defendant also submitted that, on the evidence placed before me, and in accordance with s 140(3)(b)(i) of the Act, there is a question as to whether I could be satisfied of the likelihood that the plaintiff, if successful, will be entitled to more than $750,000.

Determination

6. I respectfully reject that submission, for the following reasons.

7. First, various aspects of the opinions of the neurosurgeon were impugned. But no evidence to the contrary – or indeed any evidence at all – was tendered by the defendant at the hearing of the matter.

8. Secondly, it was submitted that some of the questions to which the neurosurgeon responded in his reports were inappropriately leading or tendentious. Without tarrying to recount them, I do not accept that there was anything inappropriate about the questions, and in any event, the opinions of the neurosurgeon, firmly and clearly expressed, speak for themselves.

9. Thirdly, in similar vein, the history upon which the expert expressed his opinion, obtained from the plaintiff, has not been contradicted by other evidence. Nor is there anything to suggest that the plaintiff is being untruthful.

10. Fourthly, it is to be noted that the total claim of the plaintiff approaches $1.4 million. In other words, there is a margin for reduction of $650,000 before the application for transfer becomes inapposite. By that I mean, even allowing very substantially for the criticisms made by the defendant of the quantum claimed by the plaintiff, one may nevertheless infer that a claim greater than the jurisdictional limit will succeed.

11. Fifthly, it is quite true that, in Milwood v Graff [2012] NSWSC 753, Garling J – whose expertise in this area of law is well-known – refused to transfer proceedings. But a reading of that judgment (in particular at [18] and [22]) shows that his Honour was concerned about the nature and quality of the evidence put forward by the applying party. In other words, applications such as these very much turn on an evaluative judgment of the particular evidence placed before the deciding judge.

12. Sixthly, it is true that I am required to be satisfied of a likelihood, in accordance with the sub-paragraph of the section upon which the plaintiff relies. But there is authority for the proposition that that determination must be approached as something of a matter of impression: Johnstone v State of New South Wales [2006] NSWCA 105; Lazare v City of Sydney Council [2015] NSWSC 1546.

13. Seventhly, I remain of the view, expressed by me in Pelka v Woolworths Limited [2016] NSWSC 1312, that the sub-paragraph must be read in accordance with s 56 of the Act. In particular, I consider that the possibility of a plaintiff being denied his full measure of damages according to law, simply because his solicitor has commenced proceedings in a court subsequently found to be inappropriate, is firmly contrary to the mandate to do justice to be found in that section.

14. In all the circumstances, and bearing in mind that the application has not been formally opposed, I am well satisfied that the matter should be transferred to this Court.

15. If I am wrong in the entirety of the foregoing analysis, in light of my concern about the possibility of the plaintiff having a legal right without legal remedy, I would nevertheless transfer the matter to this Court of my own motion, in accordance with the combined effect of ss 140(1) and 140(3)(b)(ii) of the Act.

Costs

16. As for costs, each party agreed that, whatever my substantive decision, costs should be in the cause. After reflection, I accept that joint position.

Orders

17. I make the following orders:

1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), Newcastle District Court Proceedings Number 2015/40-38 are transferred to the Supreme Court of New South Wales.

2. The costs of the matter before me are costs in the cause.

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Amendments

20 March 2017 - Amendment to typographical error in Coversheet