Sonia Lee White v Viewden Pty Limited - [2005] NSWSC 196

CITATION:
Sonia Lee White v Viewden Pty Limited [2005] NSWSC 196

HEARING DATE(S): 28 February 2005

JUDGMENT DATE :

11 March 2005

JUDGMENT OF:
Johnson J at 1

DECISION:
(a) pursuant to s.145 District Court Act 1973 order that the proceedings in the District Court of New South Wales No. 715 of 2004 be removed into the Supreme Court of New South Wales; (b) order that the pleadings in the District Court stand as pleadings in this Court; (c) order that the costs of the summons be costs in the cause; (d) order that the matter be stood over to the next call-up list in the Common Law Division of the Court.

CATCHWORDS:
PROCEDURE - Action for damages in respect of personal injury - Application for removal of proceedings from District Court to Supreme Court - Meaning of "likely" in s.145(2) District Court Act 1973 - Order for removal made - Appropriate costs order where Defendant declined to consent to unlimited jurisdiction in the District Court

LEGISLATION CITED:
District Court Act 1973

CASES CITED:
KBRV Resort Operations Pty Limited v Chilcott (2001) 51 NSWLR 516
Parry v WGE Engineering [2003] NSWSC 337
Boughey v The Queen (1986) 161 CLR 10
Tillmann Butcheries Pty Ltd v Australasian Meat Industry Employee's Union (1979) 42 FLR 331
Sheen v Fields Pty Ltd (1984) 58 ALJR 93
Waugh v Kippen (1986) 160 CLR 156
Middleton v Campbell Bros Ltd [2005] NSWCA 50

PARTIES:
Sonia Lee White (Plaintiff)
Viewden Pty Limited (Defendant)

FILE NUMBER(S):
SC 10648 of 2005

COUNSEL:
Mr D Rofe QC, Mr B Hull (Plaintiff)
Mr J Sexton SC (Defendant)

SOLICITORS:
Malcolm Johns & Company (Plaintiff)
Thompson Cooper Lawyers Pty Limited (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

11 March 2005

10648 of 2005 Sonia Lee White v Viewden Pty Limited
JUDGMENT

1 JOHNSON J: Following a hearing before me as Duty Judge on 28 February 2005, I made the following orders:

(a) pursuant to s.145 of the District Court Act 1973 , that the proceedings in the District Court of New South Wales No. 715 of 2004 be removed into the Supreme Court of New South Wales;

(b) that the pleadings in the District Court stand as pleadings in this Court;

(c) that the costs of the summons be costs in the cause;

(d) that the matter be stood over to the next call-up list in the Common Law Division of the Court.

I indicated that I would give reasons for these orders at a later time. This judgment contains those reasons.

The Plaintiff’s Claim

2 By Ordinary Statement of Claim filed in the District Court of New South Wales on 25 February 2004, the Plaintiff, Sonia Lee White, sued the Defendant, Viewden Pty Limited, for damages in negligence. It is alleged that the Defendant carried on business and was the occupier of a hotel known as the Macquarie Inn at Dubbo. The Plaintiff seeks to recover from the…

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: [2005] NSWSC 196
Decision Date: 11 March 2005

CaseChat Overview and Summary

In the matter of Sonia Lee White versus Viewden Pty Limited, the plaintiff sought damages for personal injury in the Supreme Court of New South Wales. The case involved an application to transfer the proceedings from the District Court to the Supreme Court on the grounds that the District Court did not have the necessary jurisdiction. The plaintiff alleged that she sustained injuries due to the defendant's negligence, and the amount of damages claimed exceeded the jurisdictional limit of the District Court. The primary legal issue before the court was the interpretation of the term "likely" in section 145(2) of the District Court Act 1973, which pertains to the removal of proceedings from the District Court to the Supreme Court.

The court considered whether the term "likely" in the context of section 145(2) meant probable or merely possible. The plaintiff argued that the term "likely" should be interpreted to mean probable, whereas the defendant contended for a more lenient interpretation, suggesting that "likely" should be interpreted as merely possible. The court found that the term "likely" in this context should be interpreted to mean probable, as supported by the common law principles and the purpose of the statute. The court held that the plaintiff's claim for damages exceeded the jurisdictional limit of the District Court, and thus it was likely that the plaintiff would be awarded damages in excess of the jurisdictional limit. Consequently, the application for removal was granted.

In making its decision, the court referred to relevant case law and statutory provisions, emphasising the importance of ensuring that parties receive a fair and just determination of their claims. The court concluded that the correct interpretation of the term "likely" in section 145(2) of the District Court Act 1973 was that it meant probable. Accordingly, the court ordered the removal of the proceedings from the District Court to the Supreme Court. The court also made an appropriate costs order, noting that the defendant had declined to consent to the Supreme Court's unlimited jurisdiction in the District Court. This decision ensures that the plaintiff's claim for damages will be heard and determined in a court with the appropriate jurisdiction.

Orders