Nixon v Western NSW Local Health District; Stettner v Western NSW Local Health District

[2021] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:

Nixon v Western NSW Local Health District; Stettner v Western NSW Local Health District [2021] NSWSC 189

Hearing dates:

5 March 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1) Order that proceedings be transferred to the District Court of New South Wales at Orange.

(2) Order that the costs of the applications be costs in the proceedings in that Court.

Catchwords:

TRANSFER OF PROCEEDINGS – whether proceedings should be transferred to District Court – where parties accept doing so would reflect the appropriate and proper operation of s 146(1) of Civil Procedure Act 1995 – where there is insufficient material to indicate precisely or generally what is or may be the likely quantum of damages – where there is agreement among parties that damages will not exceed jurisdiction of District Court – costs of applications shall be costs in proceedings of District Court

Legislation Cited:

Compensation to Relatives Act 1897 (NSW)

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Juliette Stettner (Plaintiff)
Robert Nixon (Plaintiff)
Western NSW Local Health District (First Defendant)
Lives Lived Well (formerly the Linden Community) (Second Defendant)

Representation:

Counsel:
S Holmes (Plaintiffs)

Solicitors:
Toby Tancred Pty Ltd, trading as Toby Tancred Solicitor (Plaintiffs)
Hicksons Lawyers (First Defendant)
Barry.Nilsson Lawyers (Second Defendant)

File Number(s):

2018/00167850; 2019/00120746

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By statements of claim filed on 29 May 2018 and 17 April 2019 respectively, the plaintiffs claim damages alleged to have arisen as a consequence of the death of Joshua Nixon. Ms Stettner is the surviving spouse of Mr Nixon and sues on her own behalf and on behalf of their three surviving children pursuant to sections 3(1) and 6B of the Compensation to Relatives Act 1897. Those proceedings were commenced in this Court. Robert Nixon is the father of Joshua Nixon. His proceedings were originally commenced in the District Court but were later transferred to this Court.

2. The plaintiffs allege that Joshua Nixon took his own life when under the supervision and control of the defendants or one of them and that they failed in the circumstances to exercise proper care for his safety. The plaintiffs alleged that Joshua Nixon’s mental health was such that his death was foreseeable and that it was caused by the defendants’ negligent acts or omissions.

3. The statements of claim are yet further examples of the current trend to plead cases in excruciating and unnecessary detail, including excessive and inappropriate reference to matters of evidence. Be that as it may, the unfortunate consequence is that the statements of claim have generated defences that are unnecessarily long in response.

4. More curiously, the defence filed by the second defendant in this Court on 16 December 2020 contains the following paragraph:

58. In further answer to the whole of the statement of claim, the second defendant:

(a)…

(b)…

(c)…

(d) so [sic, to] the extent necessary, does not consent to any award of damages in excess of the District Court jurisdictional limit and relies upon s 51 of the District Court Act 1973 (NSW).

5. It seems probable, if not certain, that the defence filed in this Court was created in slavish reliance upon the defence filed in the District Court proceedings.

6. The matter comes before me today on the plaintiffs’ application, in both matters, that the proceedings be transferred to the District Court. The parties appear to have either accepted or insisted that, having regard to the likely award of damages in each case, the District Court is the more appropriate jurisdiction.

7. Section 146(1) of the Civil Procedure Act 2005 provides relevantly as follows:

146 Transfer of proceedings to lower court

(1) If the Supreme Court is satisfied, in relation to proceedings before it--

(a) that the proceedings could properly have been commenced in the District Court…

(b)…

the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court …

8. There is no material before me to indicate precisely or even generally what is or may be the likely quantum of damages in either case. There seems to be furious agreement, however, that the damages in both cases will not exceed the jurisdiction of the District Court. In that respect I am reliant upon the opinions of the legal representatives of the parties.

9. There seems to be no reason why the application to transfer the proceedings to the District Court, which the defendants do not oppose, should not be made.

10. I order as follows:

1. Order that the proceedings be transferred to the District Court of New South Wales at Orange.

2. Order that the costs of the applications be costs in the proceedings in that Court.

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Decision last updated: 18 March 2021