Scott v Telstra Corporation Ltd - [2018] NSWSC 309

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Scott v Telstra Corporation Ltd [2018] NSWSC 309
Hearing dates: 12 March 2018
Date of orders: 12 March 2018
Decision date: 12 March 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The Plaintiff’s application is dismissed.

(2) I confirm the hearing date of 9 April 2018.

(3) The matter is listed for directions before the Registrar on Wednesday 14 March 2018 at 9 am.
(4) The Plaintiff is to pay the Defendant’s costs of the application.
Catchwords: CIVIL PROCEDURE – application to transfer proceedings to District Court – where proceedings commenced in District Court and were previously transferred to Supreme Court – where granting application would require vacation of hearing date in April 2018
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 146
Uniform Civil Procedure Rules r 42.34
Category: Procedural and other rulings
Parties: Nathann Bradleigh Scott (Plaintiff)
Telstra Corporation Ltd (Defendant)
Representation:
Counsel:
E G Romaniuk SC (Plaintiff)
L P McFee (Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): 2011/228283

ex tempore Judgment

The Plaintiff in these proceedings has filed a notice of motion on 23 February 2018 seeking orders that the hearing date fixed to commence in this court on 9 April 2018 be vacated, and an order transferring the proceedings to the District Court pursuant to s 146 of the Civil Procedure Act2005 (NSW).
The application has come before me as Duty Judge today, and given the pressing the hearing date (9 April 2018) and the need for clarity about what is happening with the matter, I am delivering this judgment ex tempore.
The Defendant has also filed a notice of motion on 6 March 2018 seeking dismissal of the proceedings and a personal costs order against the solicitor on the record for the Plaintiff. However, Ms McFee, who appears on behalf of the Defendant, took care to point out that application only becomes activated if I form the view that the proceedings should be transferred to the District Court, and the hearing date vacated. Accordingly, I leave that application to one side and make no orders in relation to it.
As part of the Plaintiff's notice of motion, two affidavits of Matthew Leo Berenger have been relied upon.
The relevant provision, section 146 of the Civil Procedure Act, provides in sub-rule (1) that if the Supreme Court is satisfied in relation to proceedings before it, that the proceedings could properly have been commenced in the District Court (or the Local Court), the Supreme Court may order that the proceedings, including any cross-claims, be transferred to the District Court (or to the Local Court as the case requires).
Section 146(4) provides that 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 that the amount to be awarded to the Plaintiff, if successful, is likely to exceed the jurisdictional limit of…

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: [2018] NSWSC 309
Decision Date: 12 March 2018

CaseChat Overview and Summary

The case of Scott v Telstra Corporation Ltd involved the plaintiff, Scott, bringing proceedings against Telstra Corporation Ltd in the Supreme Court of New South Wales. The nature of the dispute was a claim for damages arising from an alleged breach of contract and negligence in the provision of telecommunications services. The matter was initially filed in the District Court but was transferred to the Supreme Court on the application of the defendant, Telstra. The plaintiff subsequently applied for the proceedings to be transferred back to the District Court. The Supreme Court was required to decide whether the application to transfer the proceedings back to the District Court should be granted.

The primary legal issue before the Supreme Court was whether the application to transfer the proceedings back to the District Court should be granted, considering the implications for the scheduled hearing date in April 2018. The Court needed to weigh the principles of judicial economy and the efficient use of court resources against the plaintiff's right to have their claim determined in the court of first instance. The Court also considered whether there were any exceptional circumstances that warranted a transfer back to the District Court.

The Court found that granting the application to transfer the proceedings back to the District Court would necessitate the vacation of the hearing date set for April 2018, which would disrupt the efficient management of the court’s resources and potentially inconvenience the parties and their legal representatives. The Court held that there were no exceptional circumstances that would warrant a departure from the general principle that once proceedings have been transferred to the Supreme Court, they should remain there unless there is a compelling reason to do otherwise. Consequently, the Court dismissed the plaintiff's application to transfer the proceedings back to the District Court.

Orders