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

1. 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.

2. 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

3. 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 was given analgesics and went home.

4. The amended statement of claim filed on 11 July 2016 alleges that the pallets being moved on the conveyer line had a known propensity to jam and that the risk of a person being injured when exerting excessive effort and strain to free jammed pallets on the conveyer line was a risk of harm. It alleges that that risk of harm was foreseeable and not insignificant and that a reasonable person would have taken precautions to prevent injury to the plaintiff. It is pleaded that injury, loss and damage were occasioned to the plaintiff by the defendant’s breach of its duty to the plaintiff and by its negligence or that of its servants or agents. The amended statement of claim provides particulars of negligence and particulars of alleged breaches of statutory duties of care.

5. In its defence filed on 1 November 2016, the defendant denies that the plaintiff suffered injury, loss and damage as alleged, or at all. If the plaintiff suffered loss or damage as alleged, the defendant relies upon contributory negligence. The defendant also claims, further and in the alternative, that the plaintiff’s employer RNTT Pty Limited owed a non-delegable duty to provide the plaintiff with a safe place of work.

6. The plaintiff is 33 years old and was 29 at the time of the injury. He was born in Samoa and later moved to New Zealand. He completed Year 10 at school in New Zealand and moved to Australia in 2001. He did no regular work until he began working for the defendant in 2008. He lives in rental accommodation with his wife and six children.

7. The plaintiff attempted to return to work with his pre-injury employer, but no suitable duties were provided. He is currently not working.

Procedural history

8. The District Court proceedings were commenced by way of statement of claim filed on 18 February 2016. At that time the plaintiff was represented by P. K. Simpson & Co, solicitors.

9. On 19 April 2016, Gajic Lawyers became the solicitors on the record for the plaintiff.

10. On 17 May 2016 a pre-trial conference was heard before Judicial Registrar Howard and a number of case management orders were made.

11. An amended statement of claim was filed on 11 July 2016 with the consent of the defendant.

12. A report of Dr Teoh, psychiatrist, was served on the defendant on 16 August 2016.

13. The matter was listed for a Status Conference on 19 October 2016 before Judicial Registrar Howard. Further orders were made at that time.

14. On 28 October 2016 the plaintiff’s solicitors served a report of orthopaedic surgeon Dr Bodel.

15. On 1 November 2016, the defendant filed a defence in these proceedings in which it was pleaded, inter alia, that the defendant objected to the plaintiff claiming or at any time seeking to claim an amount in excess of the jurisdictional limit of the District Court.

16. The matter was listed for further directions on 14 November 2016 before Judicial Registrar Howard, at which time a number of orders were made. The matter was listed the hearing on 28 June 2017 with an estimate of three days

17. The matter was listed for further directions on 24 January 2017, at which time the hearing date of 28 June 2017 was again confirmed and leave was granted to re-list the matter on three days’ notice if the plaintiff pursued any work injury damages claim.

18. On 10 February 2017, the defendant served the reports of Dr Samuell, psychiatrist, and Dr Harvey, orthopaedic surgeon.

19. The plaintiff’s solicitor then served a number of additional reports on the defendant’s solicitor. On 9 March 2017, the report of Dr Khan, occupational physician, was served. On 15 March 2017, the report of Dr Dias, occupational physician, was served. On 21 March 2017, the report of Dr Vote, orthopaedic surgeon, was served.

20. On 18 April 2017, the defendant’s solicitor wrote to the plaintiff’s solicitor objecting to the late service of this medical evidence. The defendant’s solicitor sent a further letter to the plaintiff’s solicitor on 27 April 2017 advising that further medical examinations of the plaintiff needed to be arranged

21. On 8 May 2017, the plaintiff’s solicitor served a notice of motion seeking to vacate the hearing dates of 28, 29 and 30 June 2017 in order to allow the plaintiff to join his employer, RNTT Pty Limited, in the proceedings. That notice of motion was heard on 11 May 2017 by Letherbarrow SC DCJ and dismissed. His Honour made further orders that the plaintiff be permitted at the hearing on 28 June 2017 to rely upon the reports of Doctor Khan, Dias and Vote on the condition that the plaintiff attend certain medical examinations. In addition, the defendant was granted leave to rely at the hearing upon reports of Doctors Burhett and Lowy provided that they were served on the plaintiff’s solicitors by 16 June 2017.

22. On 12 May 2017, the defendant’s solicitor received from the plaintiff’s solicitor a report of Lucinda Smith, occupational therapist, dated 22 September 2016. It had not been previously served. By subsequent letter the defendant’s solicitor indicated that the defendant objected to reliance being placed upon that report at the hearing. No response was received to that letter. On 19 May 2017, the defendant’s solicitor filed a notice of motion seeking an order that the plaintiff be denied leave to rely upon that report.

23. On 26 May 2017, the defendant’s motion was listed before Balla DCJ. That motion was stood over for hearing on 31 May 2017 on the basis that the plaintiff objected to having been served with the notice of motion electronically and had not received a hard copy three days clear of the return date.

24. On 31 May 2017, Balla DCJ referred the matter to Olsson SC DCJ on the basis that her Honour would be the trial judge. At the conclusion of the hearing of the motion Olsson DCJ confirmed the hearing date of 28 June 2017 and declined leave to the plaintiff to rely upon the report of Ms Smith dated 22 September 2016.

25. On the same day, the plaintiff’s solicitor filed the summons in this Court seeking to transfer the proceedings from the District Court to this Court.

The evidence

26. The plaintiff relied upon the affidavit of his solicitor Ms Baiba Thomas with annexures. Ms Thomas deposed at paragraph [12] of her affidavit that the plaintiff has reasonable prospects of being awarded damages of at least $1,016,751.60, made up of the following amounts:

1. Non-economic loss of $139,000;

2. Past economic loss of $81,704.96;

3. Future economic loss of $324,726.65;

4. Past out-of-pocket expenses including an estimate for Medicare of $97,000;

5. Future out-of-pocket expenses of $20,000;

6. Past domestic assistance and carer of $55,400; and

7. Future domestic assistance and care of $298,920.

27. The only evidence upon which the plaintiff relied in support of the above particulars were the plaintiff’s tax returns and an “Employability Report” prepared by Carole Young, physiotherapist, and Ross Girdler, rehabilitation counsellor. The report writers concluded that the plaintiff is not fit for any occupation for which he is qualified. The report is based upon certain assumptions.

28. The assumptions upon which the Employability Report was based are that the plaintiff sustained injury to his left shoulder for which he required surgery on two occasions; that he had been diagnosed with a type I SLAP lesion, longitudinal split of the long head of biceps, dissection of coraco-acromial ligament; that he had undergone a subacromial decompression and biceps tenodesis twice (once in 2013 and again in 2015); that he had minor disc protrusions at C3/4 and C5/6, along with low back pain; that he had been diagnosed with chronic pain syndrome; that he is unable to return to his pre-injury duties as a labourer and pallet repairer; that he has persistent pericapsulitis; and that his long-term prognosis is guarded; that physiotherapy was commenced but ceased because of, inter alia, hypersensitivity to pain; and that he has reached maximum medical improvement.

29. No expert medical evidence forming the basis for the above assumptions was relied upon by the plaintiff on this application.

30. Annexed to the affidavit of the defendant’s solicitor Eleni Manatakis sworn 9 June 2013 was, among other things, the report of orthopaedic surgeon Dr Harvey dated 4 January 2017. Dr Harvey is not of the opinion that the plaintiff’s disability is the consequence of physical musculoskeletal injury. Although he concludes that there are likely some limitations of movement in the plaintiff’s left shoulder that are the result of surgery, he did not consider that the extreme loss of movement that is apparent on clinical examination is consistently present. Nor does he believe that it can be explained on the basis of physical injury. He opines that it is “very unlikely” that the pathology noted in the plaintiff’s left shoulder on MRI and in surgery was the direct consequence of the injury on 25 July 2013. He believes that that pathology could well have been present before the accident and is minor in any event.

31. Dr Harvey’s opinion is that the plaintiff sustained a soft tissue injury to his left shoulder in the accident. He believes that, if it were not for the “gross functional component”, the plaintiff would be fit for lighter work with the left arm that did not involve any heavier lifting above shoulder level. He accepts that the plaintiff would have difficulty with “heavier maintenance work” about the home, and with heavier gardening, and could need domestic assistance for about an hour a week. He believes that the plaintiff would be physically fit for “most cleaning activities”. Significantly, he is of the view that, in the long term, the plaintiff “…could regain quite a good range of movement in the left shoulder but it is likely that there would be some limitation.”

32. Dr Harvey does not consider that the plaintiff’s complaints of pain in the neck and back region can be explained on the basis of physical injury. He noted that imaging did not demonstrate any significant pathology in the neck or back.

33. The report of the psychiatrist Dr Samuell relied upon by the defendant appears to have been prepared in response to a report of Dr Teoh. I was not provided with any report of Dr Teoh and only know of its contents by reference to the report of Dr Samuell. Dr Samuell opines that Dr Teoh has “…pathologised a normal experience of distress.” He further states that Dr Teoh had not taken into consideration the lack of any psychological health seeking behaviour of the plaintiff. The plaintiff reported no impairment of any psychological condition to Dr Samuell. The uncontested evidence before me is that the plaintiff is not undergoing any psychological or psychiatric care, nor has he been prescribed any medication other than for pain relief.

34. It appears that the report of Dr Vote was prepared on the request of solicitors for the plaintiff’s employer for the purposes of assessing his whole person impairment (“WPI”). Dr Vote is of the view that the plaintiff suffered injury to his left shoulder as a result of the incident on 25 July 2013 and that there is a “tenable argument” with regard to secondary effect on his right shoulder due to increased use. He does not believe that the plaintiff suffered any injury to his back or neck as a result of the accident. He assesses the plaintiff as having a WPI of 15%. According to Dr Vote, the plaintiff has an 8% upper extremity impairment, which converts to a 5% WPI. He has a “much greater disability” in relation to this left shoulder, equating to an upper extremity impairment of 18%. That converts to a WPI of 11%. Using the combined charts, the 5% WPI and the 11% WPI convert to a final figure of 15% WPI. Dr Vote does not accept there was any assessable impairment to the plaintiff’s lumbar spinal or cervical spine relevant to the injury.

Relevant legislation

35. Section 4 of the District Court Act 1973 (NSW) provides that the “jurisdictional limit” of the District Court means $750,000.

36. Section 51 of the District Court Act provides that the District Court has a consent jurisdiction. That section relevantly provides:

“51 Consent jurisdiction

(1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced.

(2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies:

(a) if a party to the action or cross-claim files a memorandum of consent in respect of the action or cross-claim, or

(b) if no objection to the Court’s jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences.

(3) For the purposes of subsection (1):

(a) the jurisdictional limit of the Court in relation to an action commenced before 1 July 1993 is taken to be $100,000, and

(b) the jurisdictional limit of the Court in relation to an action commenced on or after 1 July 1993 but before 18 July 1997 is taken to be $250,000.

(4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced.

(5) This section does not apply in relation to an action referred to in section 44 (1) (c).

(6) Nothing in this section limits the operation of section 140 of the Civil Procedure Act 2005.

(7) In this section, memorandum of consent in relation to an action or cross-claim means a document signed by each party to the action or cross-claim, or the party’s Australian legal practitioner, in which it is stated that each of those parties consents to the action or cross-claim being tried in the Court and is aware that, unless the document is filed, the Court will not have jurisdiction to dispose of the action or cross-claim.”

[emphasis added]

37. Section 140 of the Civil Procedure Act 2005 (NSW) (“CPA”) 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.

(2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District 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.

(4) Proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court.

(5) This section extends to proceedings that have been transferred to the District Court or the Local Court pursuant to a previous transfer order under this Division or under Division 2.”

[emphasis added]

38. “Workplace injury damages claim” is defined in s 3 of the CPA as “a claim for an award of damages to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies.” Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) applies to an award of damages in respect of an injury to a worker, or the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker’s “employer”: s 151E of the Workers Compensation Act. The defendant was not the plaintiff’s employer at the relevant time.

39. Section 56(1) of the CPA provides that the overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) provides that the court must seek to give effect to the overriding purpose when it exercises any power given to it by the CPA or by rules of court and when it interprets any provision of the CPA or of any such rule. Section 56(3) provides that a party to civil proceedings is under a duty to assist the court to further the overriding purpose.

40. Section 58 of the CPA provides that, in deciding whether to make any order or direction for the management of proceedings, the court must seek to act in accordance with the dictates of justice.

Plaintiff’s submissions

41. Mr Barry submitted that the defendant could consent to the jurisdictional limit of the District Court being increased in this matter, which would be the complete answer to any complaint based on s 56 of the CPA. He submitted that the position of the defendant is that it does not want to risk having to pay more than $750,000 in damages to the plaintiff.

42. As for the amount of the claim, he submitted that the total amount of workers compensation that would have to be paid back by the plaintiff is $222,140.58, so the maximum amount in round figures that could be obtained in the District Court is approximately $530,000. He relied upon the plaintiff’s vocational report, described above at [27] – [29], in which the report writers concluded that the plaintiff is not fit for any occupation for which he is qualified. He focused heavily on the point that there are not many jobs around for labourers who can only use one arm.

43. When asked what had happened since the commencement of these proceedings that led to the apparently recent understanding that the size of the claim was significantly higher than that which was initially anticipated, Mr Barry responded that a number of reports had been obtained in relatively recent times.

Defendant’s submissions

44. Mr Priestley did not concede on behalf of the defendant that the claim was worth more than the jurisdictional limit of the District Court. He submitted that the correct approach to assessing that issue is an impressionistic one and that the Court is not required to conduct a full enquiry into damages. The onus rests on the plaintiff to establish that that the claim is likely to exceed the jurisdictional limit of the District Court. He relied upon the three medical reports annexed to Ms Manetakis’ affidavit, being from Doctors Harvey, Samuell and Vote. He noted that there was not a great deal of medical evidence on the plaintiff’s application to support the schedule of damages found in Ms Thomas’ affidavit.

45. Mr Priestley submitted that the procedural background is relevant to the exercise of the Court’s discretion in this matter. He relied upon the decision of the Court of Appeal in Johnstone v State of New South Wales [2006] NSWCA 105 and on the decisions of Davies J in Every v Osborne [2012] NSWSC 1437 and Bellew J in Lazare v City of Sydney Council [2015] NSWSC 1546.

46. Mr Priestley referred to the schedule of damages contained at [12] of Ms Thomas’ affidavit filed in support of the summons. He noted that there is no explanation in that affidavit as to why any of the heads of damages could not have been assessed in those amounts from the commencement of the proceedings. He noted that there was no suggestion of any evidence that had come to light to make the damages claim worth the amount set out in the affidavit. He also relied upon the general principle that an adequate explanation is required if a party is seeking an indulgence, in the exercise of the court’s discretion, to be permitted to do something out of time. He noted that no adequate explanation has been provided in this application.

47. Reliance was placed upon the fact that an application to vacate the hearing date in the District Court has already been refused. That hearing date of 28 June 2017 has now been confirmed three times. The defendant has subpoenaed a number of witnesses for that hearing date. If the plaintiff’s application is successful, that date will be lost. He submitted that the fact that any prejudice could be cured by a cost order is not the end of the matter. He relied upon the High Court decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon”) in this regard.

48. Mr Priestley also relied upon the fact that there has been non-compliance with the timetable. Finally, he noted that his instructing solicitor had signed, as a consenting party, a fresh statement of claim in the District Court joining the plaintiff’s employer as the second defendant. It is thus anticipated that the plaintiff proposes to join his employer in the proceedings prior to 28 June 2017.

49. He further submitted that the plaintiff had a choice of where to commence proceedings. When proceedings were commenced in the District Court, the defendant took a point, which was open to it, to object to claims beyond the monetary jurisdiction of the District Court. The fact that any “problem” could be solved by the defendant’s consent to unlimited jurisdiction in the District Court is not an answer to the defendant’s opposition to the application. Such an approach would not be in the interests of the defendant.

Consideration

50. The power to transfer District Court proceedings to this Court is discretionary: s 140(1) of the CPA. The parties agreed that this application falls for consideration under s 140(3)(b) of the CPA rather than s 140(3(a) because it is not a “workplace injury damages claim”, the plaintiff not being employed by the defendant at the relevant time.

51. Pursuant to s 140(3)(b) of the CPA, such proceedings are not to be transferred unless either the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court or there is other sufficient reason for hearing the proceedings in the Supreme Court. It was not contended that there would be any reason to transfer the proceedings in the present matter besides the prospect of the amount awarded to the plaintiff, if successful, exceeding $750,000. On that basis, the matters to be addressed are, first, whether the plaintiff has established on the balance of probabilities that the size of the claim is likely to exceed that amount and, if so, whether the order sought should be refused on discretionary grounds in light of the procedural history of this matter.

52. In Johnstone v State of New South Wales, Giles JA (with whom Santow and McColl JJA agreed) considered the role of a judge asked to consider whether the Court would be satisfied that an amount awarded to the plaintiff, if successful, “is likely to exceed $750,000”. Complaint was made in that matter that the judge considering the transfer application had not engaged in a complete assessment in that regard. Giles JA observed at [22]:

“Plainly he was not to engage in an exercise of complete assessment, but was to arrive at likelihood, and of necessity he had to do so to an extent as a matter of impression, albeit founded on the evidence before him.”

53. His Honour went on to observe at [23]:

“It was submitted that the judge should have gone to each of the items in the assessment, and stated his own assessment in substitution for that proposed on behalf of the claimant, so that it was demonstrated quasi-mathematically that the threshold of $750,000 was not achieved. I do not think that is correct. The question for the judge was not an assessment of the individual components of a damages claim, but rather the broader question of whether it appeared likely to him that if the claimant were successful his damages would exceed $750,000.”

54. This principle was followed by Davies J in Every v Osborne, where his Honour observed at [16]:

“The appropriate way for a judge to approach an application such as the present was set out in Johnstone v State of NSW [2006] NSWCA 105 at [22] and [23]. Giles JA said, with the agreement of Santow and McColl JJA, that the question for the judge was not an assessment of the individual components of a damages claim but rather the broader question of whether it appeared likely to him or her that if the claimant was successful the damages would exceed $750,000. In the absence of any medical or expert evidence that the domestic assistance and the loss of income are causally related to the disabilities that the Plaintiff suffers I cannot be satisfied that if successful in the claim the damages are likely to exceed $750,000.”

55. In Lazare v City of Sydney Council, Bellew J did proceed to consider the various heads of damages to some extent but it is clear from the judgment that his Honour had a number of medical reports before him and also that counsel had addressed on the issue in some detail. In the present case, the plaintiff relied solely upon the functional and vocational assessment of Mr Girdler and Ms Young in the Employability Report. Although that report concluded that the plaintiff is unable to sustain any employment in any occupation for which he is currently qualified, it was based upon assumptions that cannot be tested on this application.

56. The claim for future domestic assistance and care of $298,920 appears to be based on the fact that the plaintiff is no longer able to do heavy house work and heavy gardening. It does appear to be somewhat inflated. Dr Harvey suggested that he may need assistance of one hour per week. Dr Vote did not address this issue. Dr Samuell opined that within his limited expertise the plaintiff did not require domestic assistance. The authors of the vocational report conceded that they were not qualified to assess his needs for domestic assistance. I note that s 15(3) of the Civil Liability Act2002 (NSW) provides that no damages are payable for domestic assistance unless they are to be provided for at least six hours a week.

57. Overall, as a matter of impression, it seems to me that the difficulty with the plaintiff’s claim is that all heads of damage proceed on the assumption that the plaintiff’s condition will not improve and that he will never work again. There was no medical evidence upon which the plaintiff relied to support this proposition.

58. Having regard to the defence and to the medical reports before me, it seems that there will be issues in dispute at the hearing as to whether the extent of the plaintiff’s ongoing shoulder pain is a result of the injury on 25 July 2013 at all, whether any back pain is a result of the injury, and whether his shoulder pain is functional in nature. Dr Harvey is of the view that the plaintiff could be fit for lighter work that does not involve any heavier lifting above shoulder level.

59. The only plaintiff’s expert before me, albeit relied upon by the defendant on this application, was Dr Vote, orthopaedic surgeon. Dr Vote is of the view that the plaintiff has suffered a 15% WPI and that the injury to his back and neck were not suffered as a result of the injury claimed. It is difficult to reconcile Dr Vote’s assessment with the degree of incapacity referred to in the Employability Report, which relied upon certain untested medical assumptions.

60. I am not satisfied on the material before me that the plaintiff has established on the balance of probabilities that it is “likely” that, if successful, he will be awarded an amount that exceeds the jurisdictional limit of the District Court. I am simply unable to be so satisfied given the absence of any medical evidence relied upon by the plaintiff establishing the extent and cause of the injury.

61. Even if the plaintiff had established that s 140(3)(a) of the CPA was satisfied, the recent procedural history of this matter is a relevant factor that might well have militated against transfer on discretionary grounds in any event: see Davies J in Every v Osborne at [18] and Bellew J in Lazare v City of Sydney Council at [38] and the cases cited therein. Although there is strictly no need for me to consider this aspect of the application given my finding as to s 140(3)(b), I propose to make some observations about it given the emphasis placed upon the procedural history of the matter by the defendant.

62. There was no evidence placed before the Court as to why this application for transfer has been made so late in the proceedings. The power in s 140(1) of the CPA is clearly a discretionary one to be exercised both in accordance with ss 56 - 61 of the CPA and with the fundamental principles concerning case management discussed by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Aon.

63. The overriding purpose of civil litigation in New South Wales to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” is set out in s 56 of the CPA. Section 58 of the CPA requires the court to seek to act in accordance with the interests of justice. It is to be accepted that the overriding purpose of the CPA will, on occasion, lead to potential for a decision to result in some degree of apparent injustice.

64. The principles enunciated by the plurality in the High Court decision in Aon are well known. Although their Honours were there dealing with a late application to amend the pleadings, it seems to me that the observations made by the plurality are also relevant to the present application. At [103] their Honours observed:

“Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.”

65. (The reference to r 21 is a reference to r 21 of the Court Procedures Rules 2006 (ACT), which is in similar terms to s 56 of the CPA.)

66. Their Honours also observed at [112]:

“A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.”

67. There was no adequate explanation for the delay in the bringing this late application. The explanation from the Bar table from senior counsel for the plaintiff was the late receipt of reports. Those reports were neither identified nor placed before the Court. The absence of that evidence means that I am unable to assess whether there was a reasonable explanation for the lateness of the application.

68. As the procedural history set out above at [8] – [25] makes clear, the hearing date in the District Court of 28 June 2017 has been confirmed three times. It was on 31 May 2017, the day on which the hearing date was confirmed for the third time, that the plaintiff’s solicitor filed a summons in this Court seeking transfer of the proceedings. There was nothing placed before me to suggest that any concerns regarding the monetary jurisdiction of the District Court had arisen on any of the numerous occasions that this matter was before the District Court prior to that date. It was also only on 31 May 2017 that the plaintiff’s solicitor wrote to the defendant’s solicitor requesting for the first time that the defendant consent to the increase of the District Court’s jurisdictional limit.

69. In short, the first indication of any jurisdictional issue arose after the hearing date in the District Court was confirmed for the third time, no adequate explanation was provided for the delay in bringing this application, and all of the matters upon which the plaintiff relied to suggest the potential damages claim exceeds $750,000 (which were not before me on this application) must have been known to the plaintiff for some time, given the dates of their service.

70. I have determined this application based on the inadequacy of the material placed before this Court to satisfy s 140(3)(b) of the Act. I simply make the observation that the recent procedural history raises some concerns as to the purpose of bringing this application at this particular stage of the litigation.

71. I did not hear the parties on costs. The plaintiff sought in his summons that costs be in the cause. If the proceedings had been transferred to this Court, costs in the cause would have been the appropriate costs order. The plaintiff has been unsuccessful. I see no reason to depart from the usual order that costs follow the event.

Orders   

72. The summons is dismissed. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 19 June 2017