Naidu v Autocare Services Pty Ltd (formerly Patrick Autocare Pty Ltd)

[2017] NSWSC 46

Supreme Court

New South Wales

Medium Neutral Citation:

Naidu v Autocare Services Pty Ltd (formerly Patrick Autocare Pty Ltd) [2017] NSWSC 46

Hearing dates:

2 February 2017

Date of orders:

02 February 2017

Decision date:

02 February 2017

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Order that District Court proceedings 2015/198387 be transferred to the Supreme Court.

 

(2) Grant the parties leave to approach the Manager of Listing to obtain a hearing date with an estimate of five (5) days.

 

(3) List proceedings 2015/198387 for directions before a Registrar of this Court on 28 February 2017 at 9:00am.

 

(4) The plaintiff is to pay the costs of these proceedings on an indemnity basis.

 

(5) The plaintiff is to pay the costs of its Notice of Motion returnable in the District Court on 2 February 2017 on an indemnity basis.

 

(6) The plaintiff is to pay the defendant’s costs thrown away by reason of the vacation of the hearing in the District Court on an indemnity basis.

 

(7) All of the above costs orders be assessable forthwith.

(8) The pleadings filed in District Court proceedings 2015/198387 stand as pleadings in the Supreme Court of New South Wales pursuant to s 143(1)(a) of the Civil Procedure Act 2005 (NSW).

Catchwords:

PRACTICE AND PROCEDURE – urgent application to transfer proceedings from District Court to Supreme Court – proceedings listed for hearing in District Court – if successful plaintiff likely to exceed jurisdictional limit of District Court – prejudice to defendant – costs – delay – proceedings transferred

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Workers Compensation Act 1987 (NSW)

Category:

Principal judgment

Parties:

Anuraj Naidu (Plaintiff)
Autocare Services Pty Ltd (formerly Patrick Autocare Pty Ltd) (Defendant)

Representation:

Counsel:
GJ Parker SC; L Mathias (Plaintiff)
NE Chen SC; M Newton (Defendant)

  Solicitors:
DT Legal Pty Ltd (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2015/29609

EX TEMPORE Judgment

1. HIS HONOUR: This is the urgent hearing of a Summons seeking the transfer of proceedings pending in the District Court to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The urgency arises because the proceedings are due to be heard in the District Court commencing Monday 6 February 2017. It is necessary to say something further about the proceedings.

2. The plaintiff on the Summons, Mr Naidu, is the plaintiff in the District Court. In 2015, he commenced proceedings against the defendant seeking damages for personal injury, specifically psychiatric injury, arising out of his engagement as a truck driver by the defendant between 2011 and 2014. He specifically pleaded that a particular manager employed by the defendant subjected him to "unprovoked harassment, bullying, belittling, taunting and racial vilification". The plaintiff pleads various particulars of negligence in, and arising out of, that conduct.

3. The defence recounts various facts to the effect that Mr Naidu’s termination as a driver concerned issues relating to his breach of policies concerning fatigue, but also contains denials of the conduct alleged against the manager as well as an invocation of s 151Z of the Workers Compensation Act 1987.

4. The proceedings continued in the District Court to the point that, as I have stated, they are listed for hearing on Monday, 6 February 2017. In November 2015, the defendant's solicitor wrote to the plaintiff's solicitor pointing out that, based upon the particulars provided to date concerning the plaintiff's claim, the amount of his claim for future economic loss and domestic care exceeds the jurisdictional limit of the District Court of $750,000. The solicitor advised that the defendant did not consent to the District Court exercising extended jurisdiction over the claim.

5. It does not appear that the issue was raised again with the defendant until January 2017, when the solicitor received a letter from the plaintiff’s solicitor requesting consent to the District Court exercising extended jurisdiction and indicating that, failing that occurring, a summons would be filed transferring the matter to this Court.

6. The position taken by the defendant was to maintain its objection to the District Court exercising extended jurisdiction and opposing any adjournment of the hearing date.

7. On this application, Senior Counsel for the defendant indicated that his client's overall position in that respect was, not intending any discourtesy to the District Court, that if his client was to be exposed to a claim that exceeded $750,000, it wished to have that the subject of a determination by the highest trial court in this State, namely, this Court.

8. As the consent was not forthcoming, on 30 January 2017, the plaintiff filed the summons seeking the transfer of the proceedings. The summons was given an initial return date of 9 February 2017, which is clearly inadequate given the forthcoming hearing date. Accordingly, the plaintiff approached the Duty Judge and the matter was listed before me today and argued on an urgent basis.

9. A precondition for exercising the Court’s jurisdiction to transfer the proceedings is that the Court be satisfied that, either the amount to be awarded to the plaintiff, if he is successful, is likely to exceed the jurisdictional limit of the District Court, or there is other sufficient reason for hearing the proceedings in the Supreme Court (Civil Procedure Act, s 140(3)(b)).

10. I have reviewed material which extends beyond the particulars of the claim and includes the psychiatrists' reports that have been prepared on behalf of the plaintiff. The plaintiff is now 47 years old. He claims a very significant impairment of his earning capacity by reason of psychiatric injury, including depression, which he contends arises from his treatment at the hands of the defendant's manager. At least one of the psychiatrists' reports provides substantial evidential support for that claim, assuming, of course, that the plaintiff's account of what occurred during his engagement as a driver is accepted.

11. Bearing in mind that material, and having regard to the plaintiff's age and the other aspects of his claim, I am more than satisfied that, if he is successful, it is likely that his claim would exceed the jurisdictional limit of the District Court. Otherwise, I should note that there are some matters of complexity concerning the plaintiff’s claim which would warrant the matter being heard in this Court.

12. Once the preconditions in s 140(3)(b) of the Civil Procedure Act are satisfied, the question becomes whether the Court should exercise the discretion conferred by s 140(1). The exercise of the discretion is governed by the various matters set out in s 56 and following of the Civil Procedure Act including the specification of the dictates of justice in s 58.

13. Senior Counsel for the defendant identified a number of factors which, notwithstanding the conclusion about the likely amount of the plaintiff's claim if he is successful, he submitted, warranted the refusal of the exercise of the discretion to transfer the proceedings.

14. The first matter concerns the lack of explanation for the inaction on the part of the plaintiff in having the proceedings transferred. The affidavit sworn on behalf of the plaintiff in support of the application sets out the history of the proceedings, as well as the fact that one counsel was briefed in 2015 who became unavailable in 2016 and the retention of Senior Counsel in late 2016. The affidavit does not, however, descend to provide any explanation for the apparent change of heart between receipt of the letter from the defendant's solicitors in late 2015 and the action taken from January 2017 onwards.

15. From the bar table, Senior Counsel for the plaintiff indicated that he had been briefed late. He asserted that the plaintiff's initial position appeared to be that he was content to abandon so much of his claim that exceeded $750,000, but his attitude changed when it was specifically raised with him in late January of this year.

16. It is difficult to know what to make of this assertion when it comes from the bar table other than to state that, to the extent that it is an admission, the Court can give it some weight. The fact of a change of heart really amounts to no more than a change in a deliberate forensic choice that has been made by the plaintiff. Senior Council also pointed out that some allowance should be given to the plaintiff, given that there is evidence of his psychiatric condition which may make the making of such decisions difficult. All that can be said is that, in the end, litigants have to make forensic choices and live with them. I cannot proceed on any other basis than to conclude that this application has come about through a reversal of an accepted course within the plaintiff's camp that the case would not progress forward for an amount beyond $750,000.

17. The second matter, raised by Senior Counsel for the defendant, concerned the prejudice that would be occasioned to his client from the transfer of the proceedings to this Court, as it would inevitably involve a vacation of the hearing date that was fixed for next week. One aspect of this, of course, concerns costs. It is clear that, by now, a significant amount of costs in terms of preparation and the like will be thrown away if the matter is transferred to this Court and the hearing in the District Court next week does not proceed. To some extent, that prejudice can be ameliorated by an order that the plaintiff pay the costs thrown away by reason of the transfer as well as the costs of the transfer application. However, the material suggests that the plaintiff is impecunious, so that he would only have the ability to pay those costs in the event that he is otherwise successful. Thus, I will proceed on the basis that there is a risk that that aspect of the prejudice to the plaintiff cannot ultimately be ameliorated.

18. A further matter raised by Senior Counsel for the defendant, concerned the recollections of the witnesses. As I have stated, the events the subject of the substantive proceedings occurred between 2011 and 2014. The longer the delay in hearing the proceedings, the more likely it is that those recollections will deteriorate. In that context it seems likely that, if the matter is transferred to this Court, a hearing date could not realistically be allocated until towards the end of 2017 at the earliest.    Senior Counsel for the plaintiff pointed out that the main protagonists provided written statements in support of a workers compensation claim made by the plaintiff and that these written statements would provide them with an ability to refresh their memories. He also pointed out that this is a form of prejudice that affects both parties. However, the real significance of the effect of delay on recollections, is that it amounts to a prejudice to the administration of justice in that it makes it that much harder for the Court to determine the true facts where the witnesses' evidence is affected by the passage of time. Thus again, I accept that there is at least a potential for prejudice to both parties' cases.

19. Section 58(2)(b) of the Civil Procedure Act specifies a number of matters to which the Court may have regard in determining where the dictates of justice lie in a particular case. One relevant matter is the degree of expedition which the parties have adopted in relation to the particular issue. It has to be said that this is an application which comes at the very heel of the hunt and in circumstances where it appears to have been the accepted approach within the plaintiff's camp for a significant period of time that he would not be pursuing a claim beyond $750,000.

20. A related matter concerns the degree to which the prospective parties have fulfilled their duty to the court (Civil Procedure Act, s 56(3)). Senior Counsel for the plaintiff points to his client's compliance with the various orders of the District Court. However, at least in this context, again the approach of the plaintiff in not seeking a transfer bears significantly on this issue.

21. The most significant matter from the plaintiff's perspective is that, if this application were to be refused, the plaintiff would be at the risk of suffering a significant injustice in that, if he is successful, he has a very real prospect of obtaining an amount well in excess of $750,000. To be weighed against that is the injustice in the form of the prejudice, or potential prejudice, to the defendant that I have already identified, namely, the prospect that the defendant will be out-of-pocket and then, ultimately, not compensated for the adjournment of the hearing. Additionally, the degradation of the recollections of the witnesses and general inconvenience that is caused by a further delay in the hearing date must be considered.

22. I have found the balancing of those factors to not be an easy matter. Ultimately, however, on the strength of the material concerning the plaintiff's claim, on the assumption that he is successful, I have reluctantly come to the conclusion that the injustice that he would suffer, if he is obliged to proceed to a hearing where he is limited to recovering $750,000 is so great that it outweighs the other considerations. Accordingly, subject to the question of costs which I will come to, I will order the proceedings be transferred into this Court.

[Parties addressed on relief]

23. Consequent upon my earlier judgment, the parties have addressed upon the appropriate further orders and the question of costs. In relation to the future progress of the matter, given that the parties were ready to proceed to a hearing in the District Court next week, I think the appropriate order is to grant the parties leave to approach the Manager of Listings to obtain a hearing date with an estimate of five days. Further, I will place the matter before a Registrar for further directions to take it up to trial.

24. There was a significant debate about whether I should make some order limiting the ability of either party to rely on further evidence because of an understandable concern on the part of the defendant that, in securing the transfer, the plaintiff does not secure some forensic advantage that would not have been available if the matter had stayed in the District Court.

25. I am conscious of this concern but, equally, I do not think it is appropriate to formulate some sort of restrictive order at this stage. Instead, I will leave this matter to the Registrar on the understanding that I do not think it appropriate that the parties be put to the expense of preparing detailed written statements for the purpose of the conduct of the trial in circumstances where they have already incurred the expense of preparation for a final hearing in the District Court. This does not mean that the parties might not, for example, be ordered by the Registrar to exchange existing written statements that came into their possession from the workers compensation proceedings I referred to earlier.

26. There remains the question of costs. Apparently, the plaintiff filed a Notice of Motion, returnable today in the District Court, seeking a vacation of the hearing date next week. Senior Counsel for the defendant seeks the costs of that motion and the costs thrown away on the vacation of the hearing date. Senior Counsel for the plaintiff accepted that those orders could not be resisted. Senior Counsel for the defendant also sought an order that the plaintiff pay the costs of the transfer of the proceedings. This was resisted on the basis, so it was submitted, that the appropriate order was that it should either be the parties' costs in the cause or that each party pay the costs of the transfer.

27. In my view, in circumstances where the application was put on so late in the circumstances I have identified, the cost of the transfer is in fact truly a cost thrown away by reason of the vacation of the hearing and should, therefore, be payable by the plaintiff.

28. Senior Counsel for the defendant sought an order that all of the costs associated with the transfer be payable upon an indemnity basis. This was resisted by the plaintiff. The awarding of costs on an indemnity basis against an injured plaintiff is something I would do reluctantly. However, in my view, the relevant delinquency is the delay on the part of the plaintiff’s camp in bringing this application. This delay has the potential to accord significant prejudice to the defendant.

29. It was also submitted by Senior Counsel for the defendant that the costs should be assessable forthwith. This was not resisted by the plaintiff. I note, however, that it was not suggested by Senior Counsel for the defendant that the costs should be payable forthwith.

30. Accordingly the orders the Court makes are as follows:

(1)   Order that District Court proceedings 2015/198387 be transferred to the Supreme Court.

(2)   Grant the parties leave to approach the Manager of Listing to obtain a hearing date with an estimate of five (5) days.

(3)   List proceedings 2015/198387 for directions before a Registrar of this Court on 28 February 2017 at 9:00am.

(4)   The plaintiff is to pay the costs of these proceedings on an indemnity basis.

(5)   The plaintiff is to pay the costs of its Notice of Motion, returnable in the District Court on 2 February 2017, on an indemnity basis.

(6)   The plaintiff is to pay the defendant’s costs thrown away by reason of the vacation of the hearing in the District Court on an indemnity basis.

(7)   All of the above costs orders be assessable forthwith.

(8) The pleadings filed in District Court proceedings 2015/198387 stand as pleadings in the Supreme Court of New South Wales pursuant to s 143(1)(a) of the Civil Procedure Act 2005 (NSW).

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Decision last updated: 21 February 2017