Plaintiff A v Bird; Plaintiff C v Bird - [2015] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation: Plaintiff A v Bird ; Plaintiff C v Bird [2015] NSWSC 570
Hearing dates: 21 April 2015
Date of orders: 21 April 2015
Decision date: 21 April 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application to transfer the proceedings to this Court from the District Court allowed. Application seeking prohibition of identity of certain persons in the proceedings allowed.

Catchwords:
PROCEDURE – civil – jurisdiction – transfer of proceedings from District Court to Supreme Court – where real chance of award of damages exceeding jurisdictional limit of District Court.
PROCEDURE – civil – interlocutory issues – suppression orders – where order sought suppressing identify of plaintiffs and another child in the proceedings
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Civil Procedure Act 2005 (NSW), s 140
Cases Cited: Cubrilo v Veljovic [2015] NSWSC 367
D1 v P1 [2012] NSWCA 314
Category: Procedural and other rulings
Parties: 2015/102175
Plaintiff A (First Plaintiff)
Plaintiff B (Second Plaintiff)
Rodney Raymond Bird (First Defendant)
Representation:
Counsel:
E Romaniuk SC, M Kuma (Plaintiffs)
D Toomey (First Defendant)
N Smith (Second and Third Defendants)
Solicitors:
Shine Lawyers (Plaintiffs)

File Number(s): 2015/1021752015/102195
Publication restriction: The names of all three plaintiffs in both proceedings and the child in the second proceedings are supressed.

Judgment – Ex tempore

HER HONOUR: Before the Court are two applications to have proceedings in the District Court transferred to this Court. In each case, orders are also sought prohibiting the disclosure of the identity of certain persons involved in the proceedings. Both proceedings arise out of alleged sexual assaults at a child care centre operated by the second and third defendants in each proceeding.
The first defendant in each proceeding is the alleged offender. In one set of proceedings, the first plaintiff is a child allegedly sexually assaulted by the first defendant and the second plaintiff is the mother of that child. The claim of the child alleges intentional assault by the first defendant and negligence on the part of the second and third defendants in the conduct of the child care centre. The mother claims damages for psychiatric or psychological injury caused by the same alleged events.
In the other proceedings there is a single plaintiff, being the mother of a second child alleged to have been assaulted by the first defendant. That mother also claims damages for psychological or psychiatric injury caused by her becoming aware of the alleged assaults on her child. The child concerned in that case is not a party to the proceedings.
I turn first to deal with the applications to transfer the proceedings to this Court. The Court has power to order the transfer of proceedings to it under s 140 of the Civil Procedure Act 2005 (NSW), which relevantly provides:

(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 570
Decision Date: 21 April 2015

CaseChat Overview and Summary

The plaintiffs in these two cases sought to have their identities suppressed from the court records. The proceedings were initially heard in the District Court of New South Wales, but the plaintiffs sought to have the proceedings transferred to the Supreme Court on the basis that the potential damages could exceed the jurisdictional limit of the District Court. The defendant in both cases, Bird, opposed the transfer of the proceedings and the suppression orders.

The court was required to determine whether the potential damages exceeded the jurisdictional limit of the District Court and, if so, whether the proceedings should be transferred to the Supreme Court. The court was also required to determine whether the suppression orders should be granted.

The court found that there was a real chance that the award of damages would exceed the jurisdictional limit of the District Court and, therefore, the proceedings should be transferred to the Supreme Court. The court also found that the plaintiffs' identities should be suppressed from the court records to protect their privacy and to prevent any potential harm that may arise from the publicity of the proceedings. The court noted that the suppression orders were not intended to prevent the defendant from obtaining legal representation or from defending the proceedings.

The court ordered that the proceedings be transferred to the Supreme Court of New South Wales and that the plaintiffs' identities be suppressed from the court records. The court also ordered that the suppression orders be lifted in relation to any statements of claim or other documents that had already been filed in the proceedings. The court noted that the suppression orders were intended to protect the privacy of the plaintiffs and to prevent any potential harm that may arise from the publicity of the proceedings.

Orders