Swann v All Construction Engineering Pty Ltd - [2021] NSWSC 665

Supreme Court

New South Wales

Medium Neutral Citation: Swann v All Construction Engineering Pty Ltd [2021] NSWSC 665
Hearing dates: 4 June 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Pursuant to s 140(1) of the Civil Procedure Act, District Court proceedings number 2019/00346074 including any cross-claims in the proceedings, be transferred to the Supreme Court of New South Wales.
(2) Costs of this summons are to be the costs in the cause of the primary proceedings.
(3) This matter is listed for directions before the Registrar on 30 August 2021.

Catchwords:
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – transfer from District Court to Supreme Court under s 140, Civil Procedure Act 2005 (NSW) – whether damages likely to exceed $750,000 – where plaintiff claims total loss of capacity to work – whether prejudice to first defendant due to delayed hearing – transfer of proceedings ordered

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58, 140
District Court Act 1973 (NSW), s 4

Cases Cited:
Every v Osborne [2012] NSWSC 1437
Johnstone v State of New South Wales [2006] NSWCA 105
Kadic v Theiss Brothers Pty Ltd [1967] 2 NSWR 257
Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337
Younes v QIC Ltd (trading as Westpoint Blacktown) [2012] NSWSC 451

Category: Procedural rulings
Parties: Martin Francis Swann (Plaintiff)
All Construction Engineering Pty Ltd (First Defendant)
Manildra Energy Australia Pty Ltd (Second Defendant)
Shoalhaven Starches Pty Ltd (Third Defendant)
Interstate Enterprises Pty Ltd (Fourth Defendant)
Representation:
Counsel:
J J Ryan (Plaintiff)
D Weinberger (First, Second and Third Defendants)
A Bond (Fourth Defendant)
Solicitors:
RMB Lawyers (Plaintiff)
McCabe Curwood (First, Second and Third Defendants)
Gillis Delaney Lawyers (Fourth Defendant)

File Number(s): 2021/77940
Publication restriction: Nil

Judgment (REVISED FROM EX TEMPORE)

By summons filed on 19 March 2021, the plaintiff seeks an order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) that the proceedings between the parties in the District Court of New South Wales be transferred to this 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.
The first defendant opposes the application on the basis that the plaintiff has not advanced any change in circumstances or other explanation as to why the proceedings were not commenced in the Supreme Court in the first place. The second and third defendants neither consented to nor opposed the transfer whereas the fourth defendant consented to it. The only active contradictor on the motion was the first defendant.
The background to the plaintiff's claim is as follows, taken from the amended statement of claim filed on 17 December 2020. The plaintiff was 55 years old at the time of the accident and is now 59 years old. He commenced employment with the fourth defendant in or around…

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.

Continue reading Swann v All Construction Engineering Pty Ltd

Details

AGLC: Swann v All Construction Engineering Pty Ltd [2021] NSWSC 665
Case: [2021] NSWSC 665
Decision Date: 04 June 2021

CaseChat Overview and Summary

The matter before the court involved a plaintiff, Swann, who was suing All Construction Engineering Pty Ltd, an engineering company, for damages. The dispute centred around the potential transfer of the case from the District Court to the Supreme Court, pursuant to section 140 of the Civil Procedure Act 2005 (NSW). The plaintiff sought to have the case transferred on the basis that the damages claimed were likely to exceed $750,000 and that he had alleged a total loss of capacity to work. The first defendant argued that the transfer would cause prejudice due to the delay in the hearing of the case. The central legal issue before the court was whether the potential amount of damages claimed warranted the transfer of the proceedings to the Supreme Court, and if the delay in hearing would cause significant prejudice to the first defendant.

The court considered the factors outlined in section 140 of the Civil Procedure Act 2005 (NSW) in determining whether the case should be transferred. The court noted that the plaintiff's claim for damages exceeding $750,000 was a significant factor in favour of transfer. Additionally, the court took into account the potential prejudice to the first defendant due to the delay in the hearing of the case. The court found that while the delay might cause some inconvenience to the first defendant, it did not constitute significant prejudice that would outweigh the benefits of a transfer to the Supreme Court. The court concluded that the potential for a higher quantum of damages and the plaintiff's claim of total loss of capacity to work justified the transfer of the proceedings.

In light of the above considerations, the court ordered the transfer of the proceedings from the District Court to the Supreme Court. The court determined that the merits of the case warranted a transfer to a court with the appropriate jurisdiction to handle the quantum of damages claimed. The court also found that the potential prejudice to the first defendant did not outweigh the benefits of a transfer, given the significant amount of damages claimed. The court's decision was guided by the statutory provisions and the need to ensure that the proceedings were appropriately handled by a court with the necessary jurisdiction.

Orders