Parent v The Reject Shop Ltd - [2021] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PARENT -v- THE REJECT SHOP LTD [2021] WADC 98
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   29 SEPTEMBER 2021
DELIVERED          :   15 OCTOBER 2021
FILE NO/S:   CIVO 102 of 2021
BETWEEN:   ELISE YVONNE DENISE PARENT
Applicant

AND

THE REJECT SHOP LTD
Respondent

Catchwords:

Application for an order to remit case from the Magistrates Court - Whether the case involves a claim that is outside the Magistrates Court jurisdiction - Meaning of 'a claim'

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Application to remit from Magistrates Court allowed

Representation:

Counsel:

Applicant	:	Mr A J Stewart
Respondent	:	Mr A Basile

Solicitors:

Applicant	:	McAuliffe Legal
Respondent	:	McCabe Curwood

Case(s) referred to in decision(s):

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Freeman v McCabe [2008] WADC 125

PRINCIPAL REGISTRAR MELVILLE:

By way of a general procedure claim issued out of the Busselton Magistrates Court the applicant commenced an action against the respondent for personal injury suffered on 17 January 2017. The injury was to her right ring finger resulting in a permanent impairment and is alleged to have been caused by the negligence and/or breach of contract of the respondent. There is no dispute as to liability but there is a dispute as to what the plaintiff is entitled to recover by way of damages.
The Magistrates Court has a limit to its jurisdiction of $75,000.
The applicant has now applied by way of originating summons to the District Court for an order the case be remitted to this court on 'jurisdictional grounds'. The application is brought pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) which provides as follows:
(4)The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and ‑
(a)involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or
(b)should be dealt with by the superior court because of its complexity or because of a question of law involved.
The applicant submits that the damages she seeks exceed the jurisdictional limit of the Magistrates Court. In particular, the applicant refers to her loss of earning capacity as a result of the permanent impairment of the ring finger and claims this permanent impairment warrants an award of damages in excess of $75,000.
The defendant submits that 'the applicant bears the onus of showing on a prima facie basis that the damage caused by the respondents breach of care and breach of contract would be higher than $75,000'.
There is a danger in departing from the words of the section. In many instances whilst it is useful to paraphrase the words of the section, often to do so breathes life into the expression, 'fallacy lurks in paraphrase'.[1] Notwithstanding the submission of the defendant, this is not what the applicant is required to do.
[1] Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (Kitto J).
What the applicant is relevantly required to do is to satisfy this court that all or part of the case involves 'a claim' that is outside the Magistrates Court jurisdiction (the emphasis is mine).
The definition of 'claim' in s 3 of the Act to mean 'a claim made to a court by a party (whether a claimant, a defendant or another party)' is of limited assistance as its focus is on the class of people who might claim. However, the dictionary definition of 'claim' is of considerable assistance. The meaning 'claim' when used as a verb is given as:
1.to demand by or as by virtue of a right; demand as a right or as due.
2. to assert, and demand the recognition of (a right, title, possession, etc.); assert one's right to.
3.to assert or maintain as a fact.
4.to require as due or fitting.
5.to need, especially to need deservingly.
When used as a noun the meaning is given as: [2]
6.a demand for something as due; an assertion of a right or alleged right.
7.an assertion of something as a fact.
8.a right to claim or demand; a just title to something.
9.that which is claimed.
10.a piece of public land to which formal claim is made for mining or other purposes.
11.a payment demanded in accordance with an insurance policy, etc.
[2] Macquarie Dictionary online.
In those circumstances I take the requirement in s 39(4) that the case 'involves a claim' to otherwise mean no more than the case involves a demand or assertion to a right, in this case damages, exceeding the Magistrates Court jurisdictional limit.
Once this court is satisfied the case involves 'a claim' that is outside the Magistrates Court jurisdiction, this court's discretion to order the transfer is enlivened. The question then becomes how the discretion should be exercised.
Section 39(4) of the Act has been the subject of consideration by this court in Freeman v McCabe.[3] In that case Sweeney DCJ observed that the general procedure claim in the Magistrates Court did not on its facts raise any issue that was outside its jurisdiction, but the sum of damages sought to be claimed by the plaintiffs constituted by quotes for demolition, repair and re‑building work that raised the issue for the claim for higher damages and which, were that sum within the Magistrates Court jurisdiction the plaintiffs could amend their claim to include, was now outside the Magistrates Court jurisdiction.
[3] Freeman v McCabe [2008] WADC 125.
Having determined that the claim for increased damages 'involved a claim' that was outside the Magistrates Court jurisdiction Sweeney DCJ went on to consider the circumstances in which the court might refuse to exercise the discretion to remit the matter. Examples which Sweeney DCJ used were where the amount claimed was only minutely over the jurisdictional limit, or whether the claim that takes it over the monetary limit was plainly spurious, or an abuse of process, or vexatious. Sweeney DCJ also expressed the view that is not necessary or desirable to look too closely at the merits of the claim and expressed the view that if the amount of the judgment was ultimately assessed in an amount less than the Magistrates Court jurisdiction, that consideration would be taken into account in deciding the appropriate costs order.
In my view, her Honour must clearly be correct. Within the context of s 39(4) of the Act, it cannot be appropriate for the court to embark upon an assessment of damages for the purpose of determining whether the case should be remitted to this court for an assessment of damages. To do so would judge the very issue that needs to be judged after the matter is remitted to the court. That being said, obviously the merits of the application requires some consideration otherwise it would not be possible to form any assessment of whether the application was spurious or an abuse of process, hence Sweeney DCJ's statement that one should not look too closely at the merits, a comment which implies that some look at the merits will take place.
In the circumstances of this case, I am not of the view that the proposition that damages exceed $75,000 is obviously untenable or can otherwise be described as spurious, an abuse of process or vexatious. That is not to say I am of the view the applicant will be successful. That would be a matter for the judicial officer who is required to do the assessment. For my purposes, it is sufficient to observe that the plaintiff's affidavit evidence is to the effect that she has a permanent loss of sensation in her ring finger which removes her ability to train professional racehorses at a high level and has developed a negative psychological response to the injury demonstrated by her statement that she has 'since developed great anxiety and fear that I will hurt myself, the horse or another person and as a result of this I have not returned to high level horse training and I have sold my own horse'.[4] At Annexure C can be found a statement of a former employer to the effect they 'would have happily reemployed Ms Parent if her hand was not impaired by tendon damage. This incapacitation compromises both her safety and that of our valued animals'.[5]
[4] Affidavit of the applicant sworn 23 July 2021, par 11.
[5] Affidavit of the applicant sworn 23 July 2021.
A relatively minor physical injury can have a significant impact on earning capacity. An example not uncommonly used in the personal injury field is that of a concert pianist who loses a finger. As far as physical injuries go, it is at the minor end of the scale. But it can have devastating financial consequences.
The medical evidence attached to both the applicant's affidavit and the affidavit filed on behalf of the respondent confirms the permanency of the impairment. Whilst one medical practitioner could see no reason why the applicant could not return to her previous activities with a short period of progressively increased activity as a means of conditioning, what weight will be given to that opinion, or for that matter any other opinion or evidence, by the judicial officer ultimately deciding the matter is, on an application such as this, both speculative and inappropriate.
Further the applicant claims she could, if she could fully exercise her pre‑accident earning capacity, earn in the region of $1,128 per week net. Her claimed inability to do so results in a net loss of $171 per week which when calculated of the balance of her claimed working life results on an allowance for loss of future earning capacity of $121,410.
In the circumstances I am satisfied that the plaintiff's case or part of the plaintiff's case, namely the assessment of damages, involves 'a claim' that exceeds the Magistrate Court's jurisdiction and I see no reason why the discretion to order the case be remitted to this court should not be exercised.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RB
Court Officer
15 OCTOBER 2021