Parker v The Council of Barker College

[2017] NSWSC 1569

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Parker v The Council of Barker College [2017] NSWSC 1569
Hearing dates:	11 July 2017
Date of orders:	11 July 2017
Decision date:	17 November 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	(1) I confirm my order that the summons is dismissed.  (2) No order as to costs.
Catchwords:	PROCEDURE – application to transfer into and out of the Supreme Court to overcome the jurisdictional limit of the District Court – abuse of process – in the alternative transfer application from the District Court to the Supreme Court – explanation for delay – discretionary factors – summons dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Credit Loans Australia Pty Ltd v Viera [2016] NSWSC 484 Ge v River Island Clothing Pty Ltd [2001] NSWSC 935 James v Commonwealth Bank of Australia [2016] NSWSC 1321 Timoteo Sue v Chep Australia Pty Ltd [2017] NSWSC 781
Category:	Principal judgment
Parties:	Robert James Challis Parker (Plaintiff) The Council of Barker College (First Defendant) Terence Paul Simpkins (Second Defendant)
Representation:	Counsel: J Young (Plaintiff)   Solicitors: Medcalf Grant Lawyers (Plaintiff) Hunt & Hunt Layers (First Defendant)
File Number(s):	2017/196256

reasons for judgment

1. By way of a summons filed 30 June 2017 (“the summons”), Robert James Challis Parker (“the plaintiff”), sought the following relief:

1. Transfer the District Court Case No 2013/212325 (“the District Court proceedings”) to the Supreme Court;

2. An order that the matter proceed on the basis of unlimited jurisdiction; and

3. An order that the matter then be transferred back to the District Court for a hearing listed to commence on 7 August 2017 for five days [vested with that jurisdiction].

2. At the time of filing of the summons, the District Court proceedings had progressed to being four weeks before trial. The summons was dismissed by this Court on 11 July 2017, with reasons to follow. These are the reasons for those orders.

BACKGROUND

The District Court Proceedings

3. By a statement of claim filed on 12 July 2013, the plaintiff commenced personal injury proceedings in the District Court against the Council of Barker College (“the first defendant”), which governed the Barker College Junior School (“the School”), and Terrence Paul Simpkins (“the second defendant”), a school teacher employed by the School. The District Court proceedings will hereinafter be referred to as “the District Court proceedings”.

4. The plaintiff pleaded the second defendant’s involvement in sexual and indecent assault between July to November 1973 (“the allegation”), at which time the plaintiff was a student at the School, and brought an action in negligence against the first defendant for breach of a non-delegable duty of care and vicarious liability with respect to the allegation. The plaintiff sought relief for damages, interest and costs.

5. By a third amended statement of particulars filed 26 June 2017, the plaintiff provided, inter alia, estimations as to the total economic loss suffered, namely, $3,680,530 or $3,358,811 (“the damages”). The damages exceeded the District Court jurisdictional limitation of $750,000.

Procedural History

6. The District Court proceedings have had a lengthy procedural history fraught with case management issues. A brief summary, excluding attendances for subpoenas, follows:

1. On 2 June 2014, the matter was fixed for hearing on 16 March 2015, with an estimate of 10 days.

2. On 17 December 2014, the first defendant filed a notice of motion (“the notice of motion”) seeking to have the District Court proceedings stayed, or in the alternative, sought the following orders:

2. The plaintiff to attend and co-operate with the first defendant’s medical experts, Dr Wendy Roberts and Dr Doran Samuells.

3.The 10 day hearing commencing 16 March 2015 be vacated.

4. The plaintiff to pay the costs of the first defendant of this Notice of Motion and its costs incidental to the Notice of Motion.

3. Prayers 2-4 of the notice of motion were granted and the hearing dates were vacated. The first defendant contended the notice of motion was moved upon in response to the plaintiff’s refusal to “cooperate with the first defendant’s medico-legal experts”.

4. On 29 September 2016, the matter was fixed for hearing on 7 August 2017, with an estimate of 7 days.

5. Since 29 September 2017, the matter had been listed for directions in the District Court on five occasions:

1. 8 December 2016;

2. 20 February 2017;

3. 4 April 2017;

4. 8 May 3017; and

5. 7 June 2017.

6. On 8 March 2017, an email was sent by the plaintiff to the first defendant inquiring whether they would consent to an order extending the monetary jurisdiction of the District Court. On 14 March 2017, the plaintiff received a letter from the first defendant which confirmed that the first defendant did not consent to an order extending the monetary jurisdiction of the District Court.

7. At a directions hearing on 7 June 2017, the plaintiff notified the first defendant of an intention to seek to have the District Court proceedings transferred to the Supreme Court.

8. On 26 June 2017, the plaintiff filed a third amended statement of particulars.

9. On 30 June 2017, the plaintiff filed an affidavit. Annexed to this affidavit was a report titled Medcalf/Grant Lawyers Report (“the report”). The report was dated 1 August 2014 and contained a detailed estimation of damages of around $3.3 million, an amount well above the jurisdictional limit of the District Court.

The Supreme Court Proceedings

7. Consistent with the form of relief sought in the summons, the plaintiff pressed at the outset of his submissions for relief in a composite form. In other words, the plaintiff sought to have the proceedings in the District Court brought in this Court and then transferred back to the District Court to continue as if it was then programmed before that Court without any jurisdictional limit (“the primary relief”).

8. However, during the course of oral submissions the plaintiff pursued an alternative form of relief in which he only sought the second and third of the prayers for relief and summons. In other words, the alternative relief sought was a transfer of proceedings to the Supreme Court (“the alternative relief”).

9. On the day of the hearing of this matter the Court dismissed the summons thereby rejecting both the primary and alternative forms of relief.

Submissions

The Primary Relief

The Plaintiff’s Submissions

10. The plaintiff submitted, that, pursuant to s 44(1)(a)(ii) of the District Court Act1973 (NSW) (“DC Act”), a jurisdictional limit of $750,000 applied to the civil claim advanced by the plaintiff. At the time in which the statement of claim was filed, the quantum of damages was less than the jurisdictional limit of $750,000. However, due to a delay in obtaining accounting reports, as referred to in an affidavit from the plaintiff’s instructing solicitor dated 30 June 2017, the quantum of damages expected to be awarded was in excess of the $750,000 jurisdictional limit of the District Court.

11. The plaintiff sought to extend the unlimited jurisdiction of the Supreme Court to the District Court and retain the hearing date fixed in the latter proceeding in the interests of justice.

12. The plaintiff accepted that the only authority bearing upon the primary relief was against the grant of the application. Master Malpass in Ge v River Island Clothing Pty Ltd (Supreme Court (NSW), Malpass M, 12 September 2001, unrep) had granted a similar relief to that which was sought in the primary relief but that judgment was overturned by Studdert J in Ge v River Island Clothing Pty Ltd [2001] NSWSC 935 (“Ge v River Island Clothing”).

The Defendant’s Submissions

13. The defendant submitted that no power existed to allow for the conferral of unlimited jurisdiction of the Supreme Court to the District Court. In particular, neither the Civil Procedure Act 2005 (NSW) (“the CP Act”) nor the Uniform Civil Procedure Rules 2005 (NSW) offered any legal basis for such a ruling.

14. Relying on Ge v River Island Clothing, the defendant also submitted that the primary relief sought constituted an abuse of process.

The Alternative Relief

The Plaintiff’s Submissions

15. The alternative relief sought by the plaintiff was that the matter be transferred from the District Court to the Supreme Court for hearing pursuant to s 140(1) of the CP Act. The basis upon which this order was sought was to enable the making of orders for damages that exceeded the jurisdictional limit in the District Court.

16. The plaintiff accepted that there had been a delay in the filing of this application. However, that delay was attributable to the ability to obtain a forensic accounting report which was beyond the control of the plaintiff. That report was necessary to calculate damages.

The Defendant’s Submissions

17. The defendant submitted that the matter should not be transferred to the Supreme Court in the interests of justice and the overriding purpose, pursuant to ss 56 and 58 of the CP Act, as the application for transfer, had been delayed without any proper explanation and that the time to properly allow a transfer of proceedings had thus passed.

18. The defendant submitted that the plaintiff’s delay in bringing this application was a relevant discretionary factor that militated against a transfer: see Timoteo Sue v Chep Australia Pty Ltd [2017] NSWSC 781 (“Sue v Chep”) at [63], [67]-[69]; Credit Loans Australia Pty Ltd v Viera [2016] NSWSC 484 (“Credit Loans”) at [34] (Adamson J); James v Commonwealth Bank of Australia [2016] NSWSC 1321 (“James v CBA”) at [24], [29], [30], [40] (Darke J).

19. It was further submitted that the lengthy procedural history and present progress of the proceedings in the District Court further militated against a transfer application. The trial had already been fixed for five days with a large number of medical witnesses already prepared. There remained a significant issue as to liability. The defendant also relied upon the report annexed to the plaintiff’s affidavit filed on 30 June 2017. The defendant submitted that the report dated 1 August 2014 denoted that the plaintiff was aware of its damages exceeding the jurisdictional limit as far back as 2014.

20. The defendant accepted that, in a letter dated 19 September 2016, the plaintiff had expressed an intention to file a notice of motion seeking to extend the monetary jurisdiction of the District Court. However, that intention did not become an actuality until less than five weeks away from the trial date set.

21. The defendant submitted that there had been various occasions in which the plaintiff had the opportunity to bring about a transfer and that no such application had taken place. There had been 25 direction hearings in the District Court in which the issue could have been raised and a further five directions hearings after a hearing date had been set. This difficulty was amplified by the fact that this application for a transfer was filed with close proximity to the trial date set.

CONSIDERATION

22. Consistently with his obligations to the Court, the solicitor for the plaintiff brought to the attention of the Court that there was only one authority which bore upon the primary relief, namely, Ge v River Island Clothing, and that that authority stood to the contrary of his contentions in support of the primary relief sought.

23. The relevant passages of the judgment of Studdert J in that matter are extracted below as follows:

[10] Mr Graves of Senior Counsel submitted firstly that the procedures adopted by the respondent in seeking the transfer from the District Court and then back to it constituted an abuse of the process of this court, achieving an objective that could not otherwise have been achieved of vesting the District Court with unlimited jurisdiction in this case, in the absence of the consent of both the appellants.

[11] Whilst there is no direct evidence to this effect, it was submitted that the inference to be drawn from the respondent’s conduct is that the only purpose in coming to this court in the first place was to avoid the appellant’s opposition to unlimited jurisdiction in the District Court, but still proceed to trial in that court, and it was further submitted that the provisions of the District Court Act were used for a purpose for which they were not intended and in a way which was outside the scope of that statute…

[17] It is submitted that once the order here had been made in the Supreme Court under s 145, it was not appropriate to use s 143 in the manner in which it was used in this case and that such use was an abuse. It was further submitted that s 143 did not in its language make provision for the transfer to the District Court of proceedings which had first been transferred to the Supreme Court under s 145.

[19] As was observed by Mason CJ in Rogers v The Queen (1994) 181 CLR 251:

“The circumstances in which abuse of process may arise are extremely varied, and it would be unwise to limit those circumstances to fixed categories.”

[20] It does seem to me that the present case however does constitute such an abuse. Notwithstanding Mr Cleary’s earnest submissions to the contrary, the submissions advanced by Mr Graves ought, in my opinion, to prevail. It seems to me that what was done involved the use of the transfer processes provided for in Pt III Div 9 of the District Court Act in a manner that was never intended, and in a manner which deprived the appellants of their legitimate expectation that absent consent to the unlimited jurisdiction of the District Court, that court’s jurisdiction would be limited to $750,000.

24. Ge v River Island concerned an appeal from a judgment transferring proceedings from this Court to the District Court pursuant to the provisions of s 143(1) of the DC Act as it then applied. That determination was made in circumstances where those proceedings had earlier in time been transferred from the District Court to this Court under s 145 of the DC Act because the jurisdictional limit of the District Court had been exceeded (see s 44(1)(a)(ii) of the DC Act) (as I will discuss ss 143 and 145 of the DC Act were repealed and re-enacted as provisions of the CP Act).

25. Studdert J accepted a submission that, once an order had been made under s 145, it was not appropriate to use s 143 in the manner in which it was proposed to be used, namely, the transfer of the proceedings from this Court to the District Court in a manner which would vest in the District Court, a jurisdiction which exceeded its jurisdictional limit in circumstances where the appellant had refused to give consent to that jurisdictional limit being raised pursuant to s 51 of the DC Act. Studdert J considered that the application for such a relief in these circumstances constituted an abuse of process.

26. The plaintiff, correctly in my view, did not seek to distinguish or challenge the correctness of the authority in Ge v River Island. There is no material difference in either the relevant legislative scheme or the underlying factual matrix in this matter. Moreover, I agree, with the reasons given in [20] of his Honour’s judgment in Ge v River Island.

27. The provisions of s 44(1)(a)(ii) of the DC Act are relevantly unaltered. Section 51 has been altered so as to confine the scope of the judgment amount that may be ordered where there exists an agreement to extend the jurisdictional limit (50 per cent above the jurisdictional limit) but this amendment does not affect the application of Ge v River Island in the present circumstances.

28. As mentioned, the transfer provisions under Div 9 Subdivs 1 and 2 of the DC Act were repealed. The provisions governing transfer of proceedings between courts now resides in the CP Act. Section 140 deals with the transfer of proceedings to a higher court. Section 146 deals with the transfer of proceedings from a higher court to a lower court. However, there is no material difference for the purposes of these proceedings between transfer provisions formerly located in the DC Act and those currently residing in the CP Act. In particular, I consider the terms of s 146 of the CP Act to be not relevantly different from those found in previously s 143 of the DC Act.

29. It is convenient in that respect to set out the provisions of s 143(1) and 143(5)(b) of the DC Act operating at the time of Studdert J’s decision. Those provisions were in the following form:

143   Transfer of proceedings from Supreme Court

(1)  Where the Supreme Court is of opinion that any proceedings that are pending in the Supreme Court could properly have been commenced as an action in the Court, the Supreme Court may, if it thinks fit, on the application of any party or of its own motion, order that those proceedings be transferred to the Court sitting at such proclaimed place as the Supreme Court thinks fit.

…

(5)  Without limiting any power of the Supreme Court under this section, the Supreme Court may, at any time after the commencement and before the hearing of the action, consider any action for damages in respect of personal injury or death, in order to determine whether an order under this section transferring the proceedings ought to be made. Having considered the action, the Supreme Court is to make such an order unless:

(a)  in the case of a motor accident claim, the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance, or

(b)  in any other case, the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.

30. Sections 146(1), 146(4)(b) and 146(5) are the corresponding provisions of the CP Act. They are in the following terms:

146 Transfer of proceedings to lower court (cf Act No 9 1973, section 143; Act No 11 1970, section 21F)

(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 or the Local Court, and

(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,

the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires.

…

(4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied:

(a) in the case of a motor accident claim or 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, or

(b) in any other case:

(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or

(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.

…

(5) This section extends to proceedings that have been transferred to the Supreme Court or the District Court pursuant to a previous transfer order under Division 1.

31. In effect, both sets of transfer provisions limit the discretion of this Court to transfer proceedings that are before it to the District Court to proceedings that could “properly have been commenced” in the District Court.

32. There is no relevant difference between s 143(5)(b) of the then DC Act and s 146(4)(b) of the CP Act. I will return to the provisions of s 146(5).

33. Turning to the factual circumstances, the only difference between the facts and circumstances in this matter and Ge v River Island is that in this matter the plaintiff made an application to transfer from the District Court to this Court (as part of the primary relief) whereas in Ge v River Island the proceedings had already been transferred to this Court at the time of Master Malpass’ determination to remove the matter into the District Court (the very subject matter of the appeal in Ge v River Island). However, for the purposes of the present circumstances, these factual differences represent a difference without a distinction. As the plaintiff accepted, the primary relief orders sought were sequential in nature such that the first step would necessarily involve transfer from the District Court to this Court before the remainder of the orders may be made.

31. Returning to the judgment in Ge v River Island within the present statutory context, I consider that the application by the plaintiff as reflected in the second and third components of the primary relief in the factual circumstance of this matter involved the use of the transfer processes in Pt 9 Div 2 of the CP Act in a manner that was not intended by those provisions which increased the jurisdictional limit of the District Court without the consent of the defendant, as contemplated in s 51 of the DC Act, such as to produce an abuse of process.

32. There remains only to discuss the effect of s 146(5) of the CP Act. It is conceivable that that provision may have impacted upon the second leg of the argument advanced by the plaintiff in Ge v River Island as set out in [17] of that judgment. However, it is unnecessary to pursue that consideration any further as it would appear that Studdert J did not embrace that contention in his reasons in [20].

33. I turn then to the alternative application. True it is s 140(3)(b)(i) of the CP Act enables the transfer of District Court proceedings to this Court if the “amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court”. However to do so requires the consideration of the overriding purpose stipulated in s 56 of the CP Act and the discretionary considerations conferred in s 140 of the CP Act: see Sue v Chep at [63] and James v CBA at [24].

CONCLUSION

37. I do not consider that the plaintiff has, on balance, established a basis for the Court to exercise its discretion with respect to the transfer of the District Court proceedings to the Court for the following reasons:

1. There was no adequate explanation provided by the plaintiff as to why the application was brought so late in the proceedings after the matter had been fixed for hearing. Reference was made by the Plaintiff to an affidavit by the plaintiff’s instructing solicitor as to the delay in obtaining a second forensic accounting report. However, if that was advanced as an explanation, it did not account for the first accounting report which clearly provided an estimate of damages which significantly exceeded the jurisdiction of the District Court. That first accounting report was received three years before the scheduled hearing of the matter. It might also be noted that the plaintiff did not make a submission as to the significance of the second accounting report with respect to the assessment of damages or the application itself.

2. In Sue v Chep, N Adams J also gave considerable weight to the numerous occasions for which the application for a transfer could have been raised and yet no indication was provided until late in the procedural history of the matter (see at [68]). The same position essentially applies here. There was ample opportunity to raise the issue as to the potential of the claim to exceed the jurisdictional limit of the District Court in multiple direction hearings before the District Court including a number after a hearing date was fixed.

3. At the time of the filing of the application, the matter had already been fixed for hearing in the District Court for a period of nine months. The hearing itself was four weeks away with the preparation of a large number of medical witnesses already prepared.

38. Accordingly, I find that the relief sought in the summons filed should be refused. I confirm my order that the summons is dismissed.

39. On 2 August 2017, solicitor for the first defendant advised that the District Court proceedings had settled and, consistent with that settlement the parties had agreed that there be no order for costs in relation to these proceedings.

Amendments

20 November 2017 - Typographical error

Decision last updated: 20 November 2017