Riki v Sphere Healthcare Pty Ltd

[2021] NSWCA 276

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Riki v Sphere Healthcare Pty Ltd [2021] NSWCA 276

Hearing dates:

8 November 2021

Date of orders:

8 November 2021

Decision date:

08 November 2021

Before:

Brereton JA

Decision:

Order that pursuant to Supreme Court Act 1970 (NSW), s 51(2)(b), the proceedings be remitted to the Equity Division Corporations List.

Catchwords:

APPEALS – Jurisdiction of appellate court – Court of Appeal – Discretion to exercise jurisdiction – Appeal from District Court Judicial Registrar – Assignment to Supreme Court – Where no submissions by applicant in support of matter remaining in Court of Appeal – Remitted to Equity Division Corporations List

Legislation Cited:

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

District Court Act 1973 (NSW), s 127(2)

Supreme Court Act 1970 (NSW), ss 48, 51(2), 101

Category:

Procedural rulings

Parties:

Dustin Tourangi Riki (Applicant)
Sphere Healthcare Pty Ltd (First Respondent)
XL Insurance Company SE (Second Respondent)

Representation:

Counsel:
No appearance (Applicant)
B DeBuse (First Respondent)
J Sukkar (sol) (Second Respondent)

Solicitors:
Marsdens Law Group (First Respondent)
Barry.Nilsson Lawyers (Second Respondent)

File Number(s):

2021/187461

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

7 June 2021

Before:

Judicial Registrar Howard

File Number(s):

2020/239339

Judgment (EX TEMPORE)

1. On 2 June 2021, a Judicial Registrar of the District Court summarily dismissed proceedings brought by the present applicant Dustin Tourangi Riki against the present first respondent Sphere Healthcare Pty Ltd, and also dismissed the applicant's Amended Notice of Motion which sought to join to the proceedings the first respondent's insurer, the present second respondent XL Insurance Company SE. By Summons filed on 8 September 2021 the applicant seeks leave to appeal, purportedly under Supreme Court Act 1970 (NSW) (“SCA”), s 101, but presumably intending to refer to District Court Act 1973 (NSW) (“DCA”), s 127(2).

2. The Registrar has referred for consideration whether the proceedings should be remitted to a Division. DCA, s 127(1), provides that “[a] party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action may appeal to the Supreme Court.” SCA, s 48(2)(f) assigns to the Court of Appeal proceedings on appeal from a specified tribunal. Section 48(1)(a)(iv), defines a ‘specified tribunal’ to include “the District Court or a judge of the District Court (but not a Judicial Registrar of that Court)”. Proceedings not assigned by the Court of Appeal are assigned to the Divisions of the Court. Under SCA, s 51(2), “[w]here proceedings are commenced in the Court of Appeal but are … assigned to a Division – (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Court of Appeal, notwithstanding that the proceedings are assigned to a Division, [and] (b) the Court of Appeal may, on application by a party or of its own motion, order that the proceedings be remitted to a Division,” but otherwise, pursuant to sub-s (d), “the proceedings may be continued and disposed of in the Court of Appeal”.

3. The applicant and his solicitors have not afforded the Court the courtesy of an appearance to indicate their attitude, but the Court is informed by the first respondent's counsel that the applicant has apparently indicated that he does not oppose remitter to a Division. ^[1] It seems to me that there is no good reason why the ordinary course provided by the rules should not be followed in this case, particularly given that the applicant does not assert that it has deliberately chosen to bring the matter to the Court of Appeal.

   1. After these reasons were delivered orally, a copy of a letter in which the applicant’s solicitors indicated that they were content for the matter to be remitted to the Common Law Division was provided.

4. There has been some limited debate between the first respondent and the second respondent as to whether the matter should be remitted to the Common Law Division, to which it would ordinarily be assigned, or to the Equity Division, to be heard in the Corporations List. The questions that will arise on the hearing of the appeal concern first, the effect of a Deed of Company Arrangement, which would most appropriately be heard in the Corporations List, and secondly, the construction of provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), which could appropriately be dealt with in either Division. On balance, that favours remitter to the Corporations List.

5. The Court therefore orders that, pursuant to Supreme Court Act1970 (NSW), s 51(2)(b), the proceedings be remitted to the Equity Division Corporations List.

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Endnote

Decision last updated: 15 November 2021