Middleton v Campbell Brothers Ltd - [2005] NSWCA 50

CITATION:
MIDDLETON v CAMPBELL BROTHERS LTD [2005] NSWCA 50

HEARING DATE(S):
4 March 2005

JUDGMENT DATE:

4 March 2005

JUDGMENT OF:
Sheller JA at 1; Santow JA at 20; Pearlman AJA at 21

DECISION:
1. Proceedings be removed into the Supreme Court; 2. Costs of today be costs in the application before the Supreme Court to set aside the notice of discontinuance.

CATCHWORDS:
Transfer of proceedings to Supreme Court from District Court

LEGISLATION CITED:
Supreme Court Act 1970
District Court Act 1973

CASES CITED:
N/A

PARTIES:
Brian Middleton - Claimant
Campbell Brothers Ltd - Opponent

FILE NUMBER(S):
CA 40554/04

COUNSEL:
P J Mooney/D C Morgan - Claimant
N A Confos - Opponent

SOLICITORS:
Steve Masselos & Co - Claimant
Moray & Agnew - Opponent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
12807/01

LOWER COURT JUDICIAL OFFICER:
Murrell SC DCJ

CA 40554/04
DC 12807/01

SHELLER JA
SANTOW JA
PEARLMAN AJA
Friday, 4 March 2005

MIDDLETON v CAMPBELL BROTHERS LTD

Judgment

1 SHELLER JA: This is an application by summons made by Brian Middleton claiming a determination “by declaration or otherwise pursuant to s48(2)(e) of the Supreme Court Act 1970 that a judge of the District Court of New South Wales has the jurisdiction/power to make the orders sought by the claimant in the Notice of Motion filed on 12 December 2003”.

2 The opponent named in the summons is Campbell Brothers Ltd. The notice of motion referred to was a notice of motion filed in the District Court in which the plaintiff, the claimant in this Court, sought leave to reinstate proceedings No 12807 of 2001. In those proceedings the opponent was the defendant. In the District Court the plaintiff had, on 24 May 2002, filed a notice of discontinuance of the proceedings (12807/2001). In broad terms, the plaintiff’s reason for discontinuing was that after filing the statement of claim on 23 November 2001 to recover damages for a work related injury he had experienced a significant improvement and was confident in the complete resolution of his symptoms. Therefore it was unnecessary for the proceedings to go ahead. By September 2002 his condition had deteriorated to such an extent that he gave instructions to pursue his legal rights.

3 The application was heard by her Honour Judge Murrell SC on 15 April 2004. In the course of what was said, and I do not mean any disrespect, to be a judgment of 15 April 2004, her Honour expressed reservations about her power to make the order sought and, ultimately, made no such order, but, on an application by the plaintiff, adjourned the matter. Her Honour said that the adjournment application was to enable an application to be made for transfer of the proceedings into the Supreme Court.

4 When the summons was called on for hearing before the Court this morning, the Court expressed reservations about the propriety of the application, framed as it was to this Court, seeking to declare the jurisdictional power of the District Court in…

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: [2005] NSWCA 50
Decision Date: 4 March 2005

CaseChat Overview and Summary

In *Middleton v Campbell Brothers Ltd*, the proceedings concerned an application to transfer a matter from the District Court to the Supreme Court of New South Wales. The specific nature of the underlying dispute between the parties, Middleton and Campbell Brothers Ltd, is not detailed in the provided text, beyond the fact that it had reached a stage where a transfer of jurisdiction was being considered. The decision was made by Sheller and Santow JJA, and Pearlman AJA.

The central legal issue before the Court of Appeal was whether the proceedings should be removed from the District Court into the Supreme Court. This question likely involved an assessment of the court's jurisdiction and the appropriateness of the transfer, potentially in light of the stage of proceedings or the complexity of the matters at issue.

The Court of Appeal ordered that the proceedings be removed into the Supreme Court. Furthermore, the costs associated with this application were to be considered costs in the subsequent application before the Supreme Court concerning the setting aside of a notice of discontinuance.

Orders

Orders of the court

1. Proceedings be removed into the Supreme Court; 2. Costs of today be costs in the application before the Supreme Court to set aside the notice of discontinuance.

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:	MIDDLETON v CAMPBELL BROTHERS LTD [2005] NSWCA 50
HEARING DATE(S):	4 March 2005
JUDGMENT DATE:	4 March 2005
JUDGMENT OF:	Sheller JA at 1; Santow JA at 20; Pearlman AJA at 21
DECISION:	1. Proceedings be removed into the Supreme Court; 2. Costs of today be costs in the application before the Supreme Court to set aside the notice of discontinuance.

CATCHWORDS:	Transfer of proceedings to Supreme Court from District Court
LEGISLATION CITED:	Supreme Court Act 1970 District Court Act 1973
CASES CITED:	N/A
PARTIES:	Brian Middleton - Claimant Campbell Brothers Ltd - Opponent
FILE NUMBER(S):	CA 40554/04
COUNSEL:	P J Mooney/D C Morgan - Claimant N A Confos - Opponent
SOLICITORS:	Steve Masselos & Co - Claimant Moray & Agnew - Opponent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12807/01
LOWER COURT JUDICIAL OFFICER:	Murrell SC DCJ