Southwest Helicopters Pty Ltd v Country Energy

[2009] NSWSC 1376

CITATION:	South West Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376
HEARING DATE(S):	9 December 2009
JUDGMENT DATE :	9 December 2009
JUDGMENT OF:	Harrison J
DECISION:	Parties to provide short minutes of order to reflect these reasons.
CATCHWORDS:	PRACTICE AND PROCEDURE – application to transfer several proceedings from the District Court to the Supreme Court – where similar issues arise in proceedings in different courts – whether sufficient reason for hearing the proceedings in the Supreme Court – where the interests of justice are best served by transfer of the proceedings to the Supreme Court
LEGISLATION CITED:	Civil Procedure Act 2005 Compensation to Relatives Act 1897
CATEGORY:	Procedural and other rulings
CASES CITED:	Ryner Pty Ltd v Roller [2007] NSWSC 372 Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
PARTIES:	South West Helicopters Pty Ltd (Plaintiff) Country Energy (Defendant)
FILE NUMBER(S):	SC 20544/2009
COUNSEL:	A P Spencer (Plaintiff)
SOLICITORS:	Norton White (Plaintiff) Deacons (Defendant)

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

HARRISON J

9 December 2009

20544/2009 South West Helicopters Pty Ltd v Country Energy

JUDGMENT

1 HIS HONOUR: These proceedings arise out of the collision on 2 February 2006 between a helicopter owned and operated by South West Helicopters and power lines maintained by Country Energy. The helicopter was completely destroyed and all on board were killed. Apart from the present proceedings the collision generated seven other separate proceedings in the District Court of New South Wales. In the present application South West Helicopters seeks orders that the District Court proceedings be transferred to this Court and thereafter that they be heard concurrently with the present proceedings.

2 The application is made pursuant to s 140(1) and (3)(b)(ii) Civil Procedure Act 2005. That section is in the following relevant terms:

" 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.

(2) …

(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) …

(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."

3 All of the parties in the District Court proceedings were represented before me. With the exception of the Parkes Shire Council all agree to the orders that South West Helicopters seeks. It is necessary, however, that I be satisfied that there is sufficient reason for hearing the District Court proceedings in this Court.

4 Three of the proceedings in the District Court are brought by the widow and two children of the late Ian Stephenson who was killed in the crash. Mrs Stephenson has brought a claim for damages under the Compensation to Relatives Act 1897 and she and her two children also seek damages for nervous shock. In each proceeding South West Helicopters has filed and served cross claims against Country Energy.

5 Two other proceedings in the District Court are between Parkes Shire Council and South West Helicopters in which the Council seeks to recover workers' compensation payments made by it as a consequence of the deaths of its employees, Mr Stephenson and Malcolm Buerckner. South West Helicopters has filed and served a cross claim in each proceeding against Country Energy.

6 The remaining two proceedings have been commenced by the widow of the late Malcolm Buerckner against Country Energy claiming damages under the Compensation to Relatives Act and for nervous shock. In both of these cases as well, Country Energy has filed and served cross claims against South West Helicopters.

7 I am informed that the quantum of the claim in the proceedings in this Court exceeds the jurisdictional limit of the District Court and that neither South West Helicopters nor Country Energy consents to these proceedings being heard in that Court. In these circumstances it is contended that the sufficient reason for hearing the District Court proceedings in this Court arises from the fact that all proceedings should be heard together and that this is the only court in which that can occur.

8 It is clear that there are issues arising in all proceedings that are common to the others. There is no doubt, and it was not in contest before me, that it would be in accordance with the overriding purpose that all proceedings be heard in one court at the same time and that the prospect of dissimilar outcomes in cases determined on identical facts should be avoided if at all possible.

9 In Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 Bryson J at [3] said this:

"[3] The power is a discretionary power. The terms of the legislation do not indicate expressly any relevant considerations for exercise of the discretion, but provide for the imposition of terms, including requiring payment of costs and security for the amount claimed."

10 His Honour also said this at [7]:

"[7] An element in the facts which favours the grant of this application is the desirability, not only in the interest of Sanderson Motors and of Mr Kirby's firm, but also in the public interest, of having all matters in controversy arising out of related facts determined at the one time."

11 In Ryner Pty Ltd v Roller [2007] NSWSC 372 Price J said the following at [23]:

"[23] The Court when exercising a power conferred upon it by the CP Act must give effect to the overriding purpose of the Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" : see s 56 of the CP Act. The objects of the CP Act are best served in having both cases heard by the Supreme Court which has the jurisdiction to hear all the issues in dispute and it is preferable that the cases are heard at the same time."

12 It is submitted on behalf of the Council that there is no evidence that by reason of the jurisdictional limit of the District Court the present proceedings could not be heard there. However, in circumstances where I am informed from the bar table by senior practitioners appearing for South West Helicopters and Country Energy that the amount in dispute in the present proceedings means that they are not amenable to adjudication in that Court, I consider that I should proceed upon the basis that the information I have been given is accurate.

13 The collision and the deaths that it caused have already been the subject of a Coronial Inquest. The facts that give rise to the several proceedings do not appear to be the subject of serious controversy. The same cannot be said for the question of who should bear the liability for the losses that it has occasioned.

14 In my opinion there is more than sufficient reason for the transfer to this Court of the seven actions currently pending in the District Court. I will invite the parties in due course to bring in short minutes of order to give effect to my decision. I note that the plaintiffs in the District Court proceedings are anxious that their respective claims should be referred to mediation as soon as possible and that neither South West Helicopters nor Country Energy opposes that course in principle, provided only that a timetable giving them adequate time to prepare for those mediations can be arranged. I perceive that all parties agree that the matters should be mediated and the short minutes of order should also provide a timetable and a mechanism for this to occur promptly.

15 No party made submissions to me on the costs of the present application. It seems to me that there should be no order as to costs of this application to the intent that each party will pay or bear his, her or its own costs.

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