Parry v WGE Engineering Pty Ltd

[2003] NSWSC 337

CITATION:	Parry v WGE Engineering [2003] NSWSC 337
HEARING DATE(S):	10 April 2003
JUDGMENT DATE:	23 April 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Summons is dismissed. The plaintiff is to pay the costs of the Summons.
CATCHWORDS:	Transfer from District Court - threshold requirements - discretionary considerations and onus - onus not discharged.
LEGISLATION CITED:	District Court Act 1973, s 145, s 145 (2).
CASES CITED:	N/A
PARTIES :	Scott Parry (Plaintiff) v WGE Engineering Pty Limited (Defendant)
FILE NUMBER(S):	SC 13398 of 2002
COUNSEL:	Mr J Curran (Plaintiff) Mr Philip Biggins (Defendant)
SOLICITORS:	Lough Wells Duncan (Plaintiff) Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 23 April 2003

13398 of 2002 Scott Parry v WGE Engineering Pty Limited

JUDGMENT

1 MASTER: The plaintiff suffered personal injury in a work incident that took place on 7 April 1996. He commenced proceedings numbered 167 of 1999 in the District Court claiming damages in respect of the injury.

2 On 19 December 2002, he filed a Summons in this Court. He seeks an order pursuant to s 145 of the District Court Act 1973. Under that provision, proceedings in the District Court may be removed into the Supreme Court by order of the Supreme Court.

3 Subject to the satisfying of any threshold requirements, the section confers a discretionary power upon the court which is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus rests on the party seeking the order.

4 In the present case, there are threshold requirements. These are set forth in subsection (2). It reads as follows:-

“(2) An action for damages in respect of personal injury or death (other than a motor accident claim or work injury damages claim) may be so removed only if 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.”

5 The plaintiff relies on an affidavit sworn by his solicitor (Mr Wells). The defendant relies on an affidavit sworn by its solicitor (Mr McCarthy).

6 Generally speaking, the plaintiff’s material consists of a copy of the Statement of Claim issued in the District Court, copy reports from experts and calculations made by Mr Wells.

7 Generally speaking, the defendant’s material consists of a copy of the judgment delivered in earlier Compensation Court proceedings between the parties and copy reports from experts.

8 The plaintiff was born in 1975. At the time of incident, he was employed as a rigger earning in the order of $500 per week. In the incident, he suffered injury to his left middle finger. It is alleged that such injury leaves him with continuing physical and psychiatric problems. Largely, he has not worked since the accident. His claim is presented on the basis that he is totally unfit for work.

9 Broadly speaking, the heads of damage comprise non-economic and economic loss, superannuation, past and future treatment expenses, past and future care and costs of fund management.

10 One of the copy reports annexed to the affidavit of Mr Wells is that provided by Dr Canaris. It is dated 28 August 2002. The report contains the following:-

“In his present state he is unfit to give instructions and needs a tutor. Similarly, provision needs to be made for management of any moneys he might recoup from his litigation. I would be very wary of exposing him in his present state to the stresses of the witness box – it would be a mockery of justice as he really isn’t fit to give evidence.”

11 In his submissions in support of the application, counsel for the plaintiff drew this material to my attention. It was material which caused the court to express its concern as to whether or not these proceedings were brought upon instructions.

12 Notwithstanding the view expressed by Dr Canaris, no tutor has been appointed. Indeed, it seems that the contents of that report may have been instrumental in the bringing of these proceedings. The court was informed by counsel that he had instructions to appear for the plaintiff in the prosecution of the Summons.

13 There is dispute between the parties as to whether or not the court should be satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000. This was the principal matter litigated by the parties.

14 One real problem for the plaintiff in these proceedings is the shortcomings in the evidence. These shortcomings impact on a number of aspects of the plaintiff’s case.

15 It seems to be common ground that the alleged physical problems alone would not get the plaintiff over the jurisdictional limit. There is a considerable body of expert material which addresses the alleged psychological problems. There have been significant changes in his presentation over the years since this incident. He has been diagnosed as suffering from Narcissistic Personality Disorder. He has also been described as clearly psychotic and chronic schizophrenia has been suggested as the likeliest diagnosis. There is the suggestion of exaggeration of a gross degree. There are views that the problems would have emerged “anyway”.

16 Unfortunately for the plaintiff, the material gives little, if any, support for the contention that at least the major problems are related to the incident. The plaintiff put stress on the report from Dr Canaris. It is the most recent opinion. It opines that the relationship between the medical and the psychiatric illness is unclear. The plaintiff’s problems are compounded by his unwillingness to undergo treatment (a matter relevant to what he may recover under the various heads of damage claimed by him).

17 Findings were made in the Compensation Court concerning capacity for work. There was finding of total incapacity from at least 25 July 1996 to the end of 1997. There was a finding of partial incapacity from 1 January 1998 to 25 June 1999. The defendant contends that the findings give rise to an issue estoppel. Whilst it is not the function of the court in the hearing of the present proceedings to make any final determination on this question, it can be observed that the defendant could be expected to have reasonable prospects of at least limited success on the question at a hearing.

18 Certain of the calculations made by Mr Wells lack the necessary evidentiary support (inter alia the claim for past and future care).

19 Whilst the evidence does not deal with the matter, it is common ground that whatever may be recovered by the plaintiff will be reduced by the payments made in respect of compensation and expenses. Counsel for the plaintiff submitted that it would not exceed a sum in the order of $30,000.

20 On the material that has been placed before the court, I am not satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed the $750,000. Further, I am not satisfied that there is other sufficient reason for trying the action in the Supreme Court. Accordingly, the threshold requirements have not been satisfied. Whilst these findings are determinative in these proceedings, I should also mention certain other matters which are relevant to discretionary consideration.

21 The District Court proceedings were commenced on 4 May 1999. No application was made to have the proceedings removed into this Court until 19 December 2002. The affidavit material does not address the question of delay or how it came to pass that a decision was made to bring these proceedings. It is known that the proceedings were commenced after the plaintiff’s solicitor had received the expert report from Dr Canaris expressing the opinion that the plaintiff was unfit to give instructions and needed a tutor.

22 The court was told from the Bar Table that the District Court proceedings had been given a hearing date (6 February 2002) and that the plaintiff had procured a vacation of it for the purposes of enabling the bringing of proceedings to remove the matter into this Court. The affidavit material does not explain why it took until 19 December 2002 to bring these proceedings.

23 I would have regarded these circumstances as being both material and of weight had the court been in a position to exercise the discretionary power.

24 The onus has not been discharged. Accordingly, the application for removal fails.

25 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

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Last Modified: 04/24/2003