Sue v Chep Australia Pty Ltd - [2017] NSWSC 781

Supreme Court

New South Wales

Medium Neutral Citation: Sue v CHEP Australia Pty Ltd [2017] NSWSC 781
Hearing dates: 13 June 2017
Decision date: 16 June 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Dismiss the summons.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords: CIVIL – application pursuant to s 140 of the Civil Procedure Act 2005 (NSW) to transfer proceedings to the Supreme Court – where plaintiff contends that damages awarded may exceed jurisdictional limit of the District Court – application opposed by defendant – summons dismissed
Legislation Cited: Civil Liability Act 2002 (NSW), s 15(3)
Civil Procedure Act 2005 (NSW), ss 3, 56, 58, 140, 144
District Court Act 1973 (NSW), ss 4, 51
Workers Compensation Act 1987 (NSW), s 151E
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Every v Osborne [2012] NSWSC 1437
Johnstone v State of New South Wales [2006] NSWCA 105
Lazare v City of Sydney Council [2015] NSWSC 1546
Category: Principal judgment
Parties: Timoteo Sue (Plaintiff)
CHEP Australia Pty Ltd (Defendant)
Representation:
Counsel:
Mr C Barry QC with Mr E Chrysostomou (Plaintiff)
Mr D Priestley SC (Defendant)
Solicitors:
Gajic Lawyers (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2017/163215

Judgment

By summons filed on 31 May 2017, the plaintiff seeks an order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) (“CPA”) that the proceedings between the parties in the District Court of New South Wales, Sydney Registry, be transferred to this Court. The defendant opposes the application. The plaintiff in this Court is also the plaintiff in the proceedings in the District Court. The application is made because the plaintiff contends that the amount of the claim, if successful, would exceed $750,000, being the jurisdictional limit of the District Court.
At the hearing of the summons the plaintiff relied upon the affidavit of Baiba Thomas, solicitor, sworn 9 June 2017 and annexures. The defendant relied upon the affidavit of Eleni Manetakis, solicitor, sworn 9 June 2017 with annexures. Mr Barry QC appeared for the plaintiff and Mr Priestley SC appeared for the defendant.

Background

The background to the plaintiff’s injury is as follows, taken from the amended statement of claim and accounts given to report writers by the plaintiff. The plaintiff was employed by RNTT Pty Ltd as a labourer and pallet repairer to work on secondment to CHEP Australia Pty Ltd, the defendant in these proceedings. On 25 July 2013, he was working on a conveyor belt at the defendant’s pallet distribution premises in Erskine Park. His role was to move pallets on the conveyer belt. The conveyor belt malfunctioned and caused pallets to jam together. The plaintiff tried to move the pallets from the conveyer line. In doing so, he injured his left upper arm. He attempted to resume working on that day, but was unable to continue. He was taken to hospital, where an x-ray did not show any abnormality. He…

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: [2017] NSWSC 781
Decision Date: 16 June 2017

CaseChat Overview and Summary

The plaintiff, Sue, applied to the Supreme Court for an order transferring the proceedings from the District Court to the Supreme Court on the basis that the damages awarded in the District Court may exceed the jurisdictional limit of that Court. Chep Australia Pty Ltd opposed the application. The plaintiff argued that she had incurred significant losses, including substantial loss of earnings, special damages, and aggravated damages, which, when added to general damages, would exceed the District Court's jurisdictional limit. Chep Australia submitted that the District Court had not made any award of aggravated damages and, even if it had, it would be unlikely that the total damages would exceed the jurisdictional limit.

The Court considered the provisions of section 140 of the Civil Procedure Act 2005 (NSW) which allow for an application to transfer proceedings to the Supreme Court where damages awarded may exceed the jurisdictional limit of the District Court. The Court noted that the District Court had awarded $38,500 in special damages and $165,000 in general damages, but had not awarded aggravated damages. The Court held that the District Court's decision not to award aggravated damages was a decision on liability and, therefore, it was not open to the Supreme Court to make an award of aggravated damages in the transfer application. Accordingly, the Court concluded that it was unlikely that the total damages would exceed the jurisdictional limit of the District Court.

The Court dismissed the summons for an order transferring the proceedings to the Supreme Court. The Court held that the District Court had not made any award of aggravated damages and, even if it had, it would be unlikely that the total damages would exceed the jurisdictional limit of the District Court. The Court held that the plaintiff had not satisfied the requirements of section 140 of the Civil Procedure Act 2005 (NSW) for an order transferring the proceedings to the Supreme Court. The Court dismissed the summons.

Orders