Ryan v Thales Australia Limited

[2017] NSWSC 1014

Supreme Court

New South Wales

Medium Neutral Citation:	Ryan v Thales Australia Limited [2017] NSWSC 1014
Hearing dates:	1 August 2017
Decision date:	01 August 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order that proceedings numbered 2014/57724 in the District Court of New South Wales at Newcastle, be transferred to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW).  (2)   Order the plaintiff to pay the defendants’ costs of the application made by summons filed on 18 July 2017.
Catchwords:	PRACTICE AND PROCEDURE – Civil Procedure Act 2005 (NSW) – transfer of proceedings from District Court to Supreme Court – where amount to be awarded to the plaintiff, if successful, likely to exceed the jurisdictional limit of a District Court ­– transfer not opposed by defendants – HELD – proceedings transferred from District Court to Supreme Court   COSTS – plaintiff ordered to pay the defendants’ costs of the application as plaintiff did not press application for transferred proceedings to be re-transferred to the District Court – defendants had incurred costs in opposing order no longer sought
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 140, 146, 148
Category:	Procedural and other rulings
Parties:	Michael John Ryan (Plaintiff) The Commonwealth of Australia (Second Defendant) Defence Maintenance Management Pty Ltd (ACN 089 482 093) (Third Defendant) Worley Parsons Pty Ltd (Fourth Defendant)
Representation:	Counsel: M Best (Plaintiff) D Talintyre (Second and Third Defendants) C Le (Fourth Defendant)     Solicitors: Carroll & O’Dea (Plaintiff) Sparke Helmore Lawyers (Second Defendant) Wotton + Kearney (Third Defendant) Clyde & Co (Fourth Defendant)
File Number(s):	2017/218391

Judgment: EX TEMPORE

The relief sought in the summons

1. By summons filed on 18 July 2017, Michael Ryan, the plaintiff, seeks an order for proceedings commenced by him in the District Court at Newcastle to be transferred to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The summons also sought an order that the proceedings be transferred to the District Court of New South Wales at Newcastle pursuant to s 146(1) of the Civil Procedure Act. However, Mr Best who appears for the plaintiff on this application, no longer presses for this order. Prayer 2 seeks an order that the pleadings in the District Court proceedings stand as pleadings in the proceedings in this Court. I am satisfied that, having regard to the wording of s 148 of the Civil Procedure Act, such an order is unnecessary.

2. On the basis of the affidavit evidence adduced by the plaintiff in support of the summons, I am satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of a District Court within the meaning of s 140(3)(b) of the Civil Procedure Act. In these circumstances I consider it to be appropriate that this Court make an order for transfer pursuant to s 140(1) of the Civil Procedure Act in order that the plaintiff is not disadvantaged by the jurisdictional limit applicable in the District Court, being the Court in which the proceedings were commenced.

3. I note that Mr Talintyre, who appears for the second and third defendants, and Ms Le, who appears on behalf of the fourth defendant, do not oppose the order for transfer. Nor does either seek to be heard against the order for transfer. In those circumstances I propose to make an order in accordance with prayer 1 of the summons.

Costs

4. I note the plaintiff seeks that the costs of this application be costs in the cause. That application is opposed by the second, third and fourth defendants. I am satisfied on the basis of the approach taken by the defendants to the plaintiff's application for a transfer to this Court pursuant to s 140(1) of the Civil Procedure Act, that the defendants may well either not have appeared or sent a junior person to appear and not be heard against the plaintiff's application for an order under prayer 1. It appears that the plaintiff's application for an order under s 146(1) of the Civil Procedure Act (that the matter, once transferred to this Court pursuant to s 140(1) be transferred to the District Court pursuant to s 146 of the Civil Procedure Act) has necessitated the preparation of detailed submissions by Mr Talintyre, which were also adopted by Ms Le.

5. In the circumstances, I am persuaded that the costs incurred by the defendants have largely been incurred by reason of the plaintiff's application for an order which he no longer presses. In these circumstances I consider it to be appropriate to order that the plaintiff pay the defendants' costs of this application.

Orders

6. I make the following orders:

1. Order that proceedings numbered 2014/57724 in the District Court of New South Wales at Newcastle, be transferred to this Court pursuant to s 140(1) of the Civil Procedure Act2005 (NSW).

2. Order the plaintiff to pay the defendants’ costs of the application made by summons filed on 18 July 2017.

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Decision last updated: 01 August 2017