Skinner v Shine Pty Limited; Skinner v NSW Police Force

[2019] NSWSC 1709

Supreme Court

New South Wales

Medium Neutral Citation:

Skinner v Shine Pty Limited; Skinner v NSW Police Force [2019] NSWSC 1709

Hearing dates:

2 December 2019

Decision date:

03 December 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

In proceedings 2019/00201704

 

(1) Summons dismissed.

 

(2) Order the plaintiff to pay the defendant’s costs of the proceedings.

 

In proceedings 2019/00019187

 

(1) Dismiss the plaintiff’s notice of motion filed on 14 June 2019.

 

(2) Order the plaintiff to pay the defendants’ costs of the notice of motion.

 (3) List the matter for directions before the Registrar at 9am on 17 February 2020.

Catchwords:

PRACTICE AND PROCEDURE – power to transfer proceedings from District Court to Supreme Court – whether in the interests of justice to order that both proceedings be heard together – undesirable for claim for leave under s 151D of the Workers Compensation Act 1987 (NSW) to be heard together with action against solicitors for not bringing claim within time – applications for transfer and joinder refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-59, 140
District Court Act 1973 (NSW), s 44
Uniform Civil Procedure Rules 2005 (NSW), rr 28.5, 42.1
Workers Compensation Act 1987 (NSW), s 151D

Cases Cited:

Firth v Sutton [2010] NSWCA 90
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394; [1989] HCA 11
Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492
Wilson v Minister for Land and Water Conservation for the State of New South Wales (2003) 126 FCR 500; [2003] FCA 307

Category:

Principal judgment

Parties:

In proceedings 2019/19187:

 

Kristen Jayne Skinner (Plaintiff)
Shine Pty Ltd (First Defendant)
Ross Whitelaw and John McDonald t/as Whitelaw McDonald Solicitors and Attorneys (ABN 36830575326) (Second Defendant)
Robert Patrick Higgins, Hannan Indari and Ors t/as Carrol & O’Dea Lawyers (ABN 70355352183) (Third Defendant)

 

In proceedings 2019/201704:

  Kristen Jayne Skinner (Plaintiff)
NSW Police Force (Defendant)

Representation:

In proceedings 2019/19187:

 

Counsel:
C Hart (Plaintiff)
N Olson (First Defendant)
R Smith (Second Defendant)
A Williams (Third Defendant)

 

Solicitors:
Prominent Lawyers (Plaintiff)
Shine Lawyers incorporating Palmiera Law firm (First Defendant)
Gilchrist Connell (Second Defendant)
Yeldham Price O’Brien Lusk (Third Defendant)

 

In proceedings 2019/201704:

 

Counsel:
C Hart (Plaintiff)
D Stanton (Defendant)

  Solicitors:
Prominent Lawyers (Plaintiff)
SMK Lawyers (Defendant)

File Number(s):

2019/19187; 2019/201704

Judgment

Introduction

1. Kristen Skinner, the plaintiff, has commenced proceedings in the District Court and in this Court. She seeks to have the proceedings in the District Court transferred to this Court and heard together with the proceedings which were commenced in this Court.

The facts

The Work Injury Proceedings

2. The plaintiff, who became a police officer in 1992, ceased work in 2008 and was medically retired in 2010. On 17 March 2017 she commenced proceedings in the District Court against the State of New South Wales (the State) for work injury damages arising from psychiatric injuries she is alleged to have sustained as a police officer in the New South Wales Police Force (the Work Injury Proceedings).

3. The State filed a defence in which it alleged that the plaintiff required leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (s 151D). Section 151D provides that a person claiming damages against an employer is not entitled to commence proceedings more than 3 years after the injury was received, except with the leave of the court in which proceedings are to be taken. The plaintiff filed a motion seeking leave to proceed under s 151D. The motion and the principal proceedings were listed for hearing concurrently in the District Court to commence on 29 January 2019 with a 10-day estimate. This hearing was vacated on 11 January 2019, on the plaintiff’s application. The current estimate for the Work Injury Proceedings is 15-20 days.

The Professional Negligence Proceedings

4. On 18 January 2019 the plaintiff commenced proceedings (2019/19187) in this Court against Shine Pty Ltd (Shine), the first defendant; Whitelaw and McDonald (Whitelaw), the second defendant; and Carroll & O’Dea Lawyers (Carroll & O’Dea), the third defendant (the Professional Negligence Proceedings). Each of the defendants was a firm of solicitors which had been, at various times, instructed by the plaintiff to advise her and act on her behalf. The plaintiff alleged that each of the defendants was negligent in failing to commence the Work Injury Proceedings within time or at an earlier point in time.

The plaintiff’s applications

5. On 28 June 2019 the plaintiff filed a summons in this Court (2019/201704) to have the Work Injury Proceedings transferred from the District Court to this Court. On 14 June 2019 she filed a notice of motion in the Professional Negligence Proceedings to have both proceedings heard together.

The relevant legislation

6. Section 140 of the Civil Procedure Act 2005 (NSW) relevantly provides:

“140   Transfer of proceedings to higher court

(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 the proceedings, be transferred to the Supreme Court.

…

(3)     Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:

(a)     in the case of a motor accident claim or a workplace injury damages claim:

(i)     that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and

(ii)     that the case involves complex legal issues or issues of general public importance, or

(b)     in any other case:

(i)     that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or

(ii)     that there is other sufficient reason for hearing the proceedings in the Supreme Court.”

7. Section 44(1)(d1) of the District Court Act 1973 (NSW) relevantly provides that the District Court has jurisdiction to hear and dispose of any work injury damages claim, irrespective of the amount claimed.

8. Section 151D provides in part:

“151D      Time limit for commencement of court proceedings against employer for damages

…

(2)     A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3)     The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

…”

9. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 28.5 provides:

“28.5   Consolidation etc of proceedings

If several proceedings are pending in the court and it appears to the court—

(a)     that they involve a common question, or

(b)     that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or

(c)     that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.”

Consideration

The issues in dispute

10. Mr Hart, who appeared for the plaintiff, submitted that it would be more convenient if the proceedings were heard together in this Court. He argued that it would also be more efficient because there would be common questions of law and fact and the joinder would tend to promote settlement.

11. Mr Stanton, who appeared on behalf of the State, submitted that, if the proceedings were heard together, the State would be required to take part in very lengthy proceedings which would give rise to several issues in which it had no relevant interest. He contended that this would necessarily increase the State’s costs. He accepted that the Court had power to order the transfer and that, if the plaintiff were successful, her damages could be greater than $1 million.

12. Mr Olson, who appeared on behalf of Shine, submitted that this Court was prohibited from transferring the Work Injury Proceedings from the District Court to this Court because the plaintiff could not establish the conditions precedent to an exercise of the power in s 140(3)(a) of the Civil Procedure Act. Further, and in the alternative, he submitted that it was not in the interests of justice for the proceedings to be heard together because there were few, if any, common questions of law and fact and that the determination of the Work Injury Proceedings would have a significant impact on the Professional Negligence Proceedings. He argued that, if the plaintiff were granted leave under s 151D, the foundation for the Professional Negligence Proceedings would either be removed or the quantum claimed would be significantly reduced. He submitted that the only reason for transfer was so that the proceedings could be heard together and that, as there was no good reason for the matters to be heard together, the Work Injury Proceedings ought not be transferred to this Court.

13. Mr Olson also submitted that the Professional Negligence Proceedings ought be stayed pending the determination of the Work Injury Proceedings. He accepted that the plaintiff had not been given notice of this submission or Shine’s application for such an order prior to receipt of his written submissions which were dated 2 December 2019.

14. Ms Smith, who appeared for Whitelaw, was neutral about the transfer and the matters being heard together. Ms Williams, who appeared for Carroll & O’Dea, adopted Shine’s submissions and contended that there was no reason for the Work Injury Proceedings to be transferred to this Court because they ought be determined before the Professional Negligence Proceedings.

15. Mr Hart submitted, in reply, that the matter involved both “complex legal issues” and “issues of general public importance” because it turned on the distinction between “line of duty” and “management” which was relevant to the questions of duty and standard of care. He also submitted that there were significant issues of general public importance because the plaintiff was a police officer and her claim gave rise to important issues about the relationship between individual police officers and the Crown.

The application for transfer of the Work Injury Proceedings

Whether the Court has power to transfer the Work Injury Proceedings

16. This Court’s general power to transfer proceedings from the District Court is conferred by s 140(1) of the Civil Procedure Act. This power is subject to the restrictions in s 140(3): Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 at [134]-[138] (Basten JA, Handley AJA agreeing). Accordingly, it is necessary for an applicant for transfer of proceedings which comprise a workplace injury damages claim to establish the matters in s 140(3)(a)(i) and (ii).

17. Mr Stanton accepted that the condition in s 140(3)(a)(i) of the Civil Procedure Act was satisfied as a matter of mathematics, having regard to the plaintiff’s age (she was born in 1972) and the claim for loss of income to a retirement age of 67, together with other heads of damage. Accordingly, the question arises as to whether I am satisfied that the case involves either complex legal issues or issues of general importance within the meaning of s 140(3)(a)(ii).

18. It is not necessary to decide whether there are any issues which might meet that description. For the reasons given below, I am not persuaded that the Work Injury Proceedings ought be transferred even if I were satisfied that the proceedings involved issues of that character.

Whether it is appropriate for the proceedings to be heard together

19. Whether it is appropriate for the Work Injury Proceedings to be heard with the Professional Negligence Proceedings is relevant not only to the plaintiff’s notice of motion, but also to the plaintiff’s summons since the principal basis on which the plaintiff seeks transfer of the Work Injury Proceedings to this Court. The relevant principles according to which the discretion is to be exercised are those set out in Part 6 of the Civil Procedure Act and, in particular, ss 56-59.

20. The outcome of the Work Injury Proceedings will have a substantial impact on the Professional Negligence Proceedings. If leave under s 151D is granted in the Work Injury Proceedings, the plaintiff’s damages in the Professional Negligence Proceedings will be reduced to nothing or, at best, a relatively small amount. If leave is refused, the plaintiff will have at least some foundation for a claim for substantial damages, if she is able to prove negligence and causation against at least one of the three defendants. Further, if the proceedings are heard together, the State will be subjected to the costs of being present for the litigation of several issues in which it has no relevant interest and the three defendants in the Professional Negligence Proceedings will, similarly, incur costs by having to be present for the litigation of issues with which they are not concerned.

21. Further, the damages for each cause of action are to be measured on different bases. In the Work Injury Proceedings, the damages, if any, will be assessed as at the date of judgment. In the Professional Negligence Proceedings, which comprise action for damages for loss of the opportunity to bring a claim, the damages are to be measured by reference to the value of the lost chance and not the full value of the claim: Firth v Sutton [2010] NSWCA 90 at [161] (Allsop P, Macfarlan and Young JJA agreeing). Such damages are assessed as at the date on which the claim became statute-barred: Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 at 402-404 (Wilson, Dawson, Toohey and Gaudron JJ); [1989] HCA 11.

22. Mr Hart submitted that the prospects of settlement would be increased if the matters were heard together. It is difficult to determine on what basis this would be the case except on the assumption that parties who are in close proximity (by reason of joinder of the proceedings) may have more opportunities to resolve the issues between them. Were this Court to order that the proceedings be heard together, it is also conceivable that the defendants will be inclined to pay more to the plaintiff by reason of the substantial costs they would incur in defending what would inevitably be longer and more complex proceedings. It would not be in the interests of justice for this Court to order that proceedings be heard together if such an order would result in a party with confined interests having to participate in much larger proceedings: Wilson v Minister for Land and Water Conservation for the State of New South Wales (2003) 126 FCR 500; [2003] FCA 307 at [46] (Hely J). This Court ought not permit a situation where defendants will be, in effect, held hostage in proceedings in a substantial part of which they have little or no interest, merely because it might be more convenient for the plaintiff to have them assembled for the purposes of increasing the prospects of settlement. For the reasons given above, the joinder of the proceedings could, depending on the outcome, expose the plaintiff to substantial adverse costs orders against her.

23. It is also of significance that the Work Injury Proceedings are ready for hearing. As referred to above, the hearing date in January 2019 was vacated because of the filing of the plaintiff’s summons in this Court. By contrast, the Professional Negligence Proceedings have not advanced significantly since their commencement because of the need to await determination of the plaintiff’s present notice of motion.

24. The interests of justice are, in my view, overwhelmingly in favour of the Work Injury Proceedings being heard and determined before the Professional Negligence Proceedings. For this reason the plaintiff’s summons and notice of motion ought be dismissed.

25. There is much to be said in favour of Shine’s application for a stay of the Professional Negligence Proceedings pending determination of the Work Injury Proceedings. However, as the plaintiff has not had adequate notice of that application, I do not propose to address it further.

Costs

26. The parties agreed that, if the plaintiff were unsuccessful, costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

Orders

27. For the reasons given above, I make the following orders:

In proceedings 2019/00201704

1. Summons dismissed.

2. Order the plaintiff to pay the defendant’s costs of the proceedings.

In proceedings 2019/00019187

1. Dismiss the plaintiff’s notice of motion filed on 14 June 2019.

2. Order the plaintiff to pay the defendants’ costs of the notice of motion.

3. List the matter for directions before the Registrar at 9am on 17 February 2020.

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Decision last updated: 03 December 2019