Milios v Austress Freyssinet Pty Ltd

Case •

[2015] NSWSC 951

•

14 July 2015

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Milios v Austress Freyssinet Pty Ltd [2015] NSWSC 951
Hearing dates:14 July 2015
Date of orders: 14 July 2015
Decision date: 14 July 2015
Jurisdiction:Common Law
Before: Davies J
Decision:

1. Plaintiff’s application to transfer proceedings to the Supreme Court refused.
2. Summons dismissed.
3. Plaintiff to pay the Defendant’s costs of the summons.

Catchwords: PROCEDURE – transfer between courts – proceedings commenced in District Court – workplace injury claim – application to transfer to Supreme Court – requirements for transfer under s 140(3) Civil Procedure Act – need to show complex legal issues or issues of general public importance – no such issues demonstrated
Legislation Cited: Civil Procedure Act 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Category:Principal judgment
Parties: Andrew Milios (Plaintiff)
Austress Freyssinet Pty Ltd (Defendant)
Representation:

Counsel:
T Meakes (Plaintiff)
D Shankar (Defendant)

  Solicitors:
Paramount Compensation Lawyers (Plaintiff)
Rankin Ellison Lawyers (Defendant)
File Number(s):2015/184811

Judgment

  1. The Plaintiff commenced proceedings in the District Court on 10 March 2015 in respect of a workplace injury that took place on 12 March 2007.

  2. The Plaintiff now applies, by summons filed in this Court on 23 June 2015, to transfer those District Court proceedings to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

  3. Section 140(3) provides:

Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:

(a) in the case of a motor accident claim or a workplace injury damages claim:

(i) that the amount to be awarded to the Plaintiff, if successful, is likely to be more than $1,000,000, and

(ii) that the case involves complex legal issues or issues of general public importance.

  1. The Plaintiff sustained an injury to his lumbar spine in the accident. He was initially operated on by Dr Steele and it appeared for a period of time that there would be a reasonably good recovery from the injury. Unfortunately, it has transpired that that was not to be the case.

  2. The Plaintiff’s condition appears to have deteriorated considerably and he has been assessed as being 15% whole person impaired for his physical injuries notwithstanding a pre-existing back condition. In addition, he has been certified to be 15% whole person impaired as a result of psychological conditions that have emerged as a result of his physical injury and the disabilities he has sustained.

  3. The Plaintiff is, as I have noted, required to demonstrate two matters for a workplace injuries damages claim. The first is that the amount to be awarded, if the Plaintiff is successful, is likely to be more that $1 million. I am satisfied from reading the various medical and other reports that the Plaintiff’s likely loss of wages over the period of his life is such that the damages are likely to exceed $1 million, if he is successful.

  4. What he must show further is that the case involves complex legal issues or issues of general public importance.

  5. The Plaintiff submits that there are a number of matters which would satisfy that requirement. The Plaintiff says that there will be a report from the Defendant which will dispute how the accident occurred and probably whether the accident was foreseeable in the circumstances that the injury was sustained. The Plaintiff points further to the fact that the proceedings were commenced out of time stipulated in s 151D of the Workers Compensation Act 1987 (NSW).

  6. I am not satisfied that any of the matters that the Plaintiff has identified can properly be described as complex legal issues or issues of general public importance. There may be complex factual issues in the matter but even if that was the test for transfer, they are not so complex as to justify a transfer. They are matters which the District Court decides on a daily basis arising out of work injuries. It does not appear to me that any issues of foreseeability or causation in the present matter could properly be described as complex.

  7. The question of the proceedings being commenced out of time, because the Plaintiff had not realised until more recently quite the extent of his injuries and disabilities, is also a type of matter that is ordinarily decided in the District Court. It does not raise complex legal issues.

  8. The District Court has complete jurisdiction and unlimited jurisdiction to award damages in workplace injury matters: District Court Act 1973 (NSW) s 44(1)(d1).

  9. I am not satisfied that the Plaintiff demonstrates there are complex legal issues and in those circumstances, s 140(3) prevents transfer from the District Court.

  10. The summons is dismissed.

  11. No basis was demonstrated by the Plaintiff for making the application for transfer when two conditions had to be satisfied. There was nothing to justify a finding of complex legal issues. In those circumstances, the Plaintiff should pay the Defendant’s costs of the summons.

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Decision last updated: 16 July 2015

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