Thomas v Laundy (Exhibition) Pty Ltd
[2016] NSWSC 1395
•27 September 2016
Supreme Court
New South Wales
Medium Neutral Citation: Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395 Hearing dates: 27 September 2016 Date of orders: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order that the proceedings in the District Court of New South Wales be transferred under s 140(3)(b)(i) of the Civil Procedure Act 2005 (NSW).
(2) Order the plaintiff to pay the defendants’ cost of the application for transfer to this Court.Catchwords: PRACTICE AND PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – if plaintiff successful amount awarded likely to exceed jurisdictional limit of District Court – order made Legislation Cited: Civil Procedure Act 2005 (NSW), s 140 Category: Procedural and other rulings Parties: Mark Thomas (Plaintiff)
Laundy (Exhibition) Pty Ltd (Defendant)
Michael John Cutajar (Second Defendant)
Mark Malloy (Third Defendant)Representation: Counsel:
Solicitors
R Chia (Plaintiff)
M Wilson (First and Third Defendants)
T Davy (Second Defendant)
Brydens Lawyers Pty Limited (Plaintiff)
HBA Legal (First and Third Defendants)
Henry Davis York (Second Defendant)
File Number(s): 2016/277518
Judgment – EX TEMPORE
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The plaintiff, Mr Thomas, filed a summons on 15 September 2016, seeking that District Court proceedings commenced on his behalf in 2014 be transferred to this Court. Mr Wilson, who appears on behalf of the first and third defendants, and Ms Davy, who appears for the second defendant, neither consent nor oppose the transfer.
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Section 140 of the Civil Procedure Act 2005 (NSW) relevantly provides:
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:
. . .
(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,
. . .
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The basis of the plaintiff’s application is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court: s 140(3)(b)(i) of the Civil Procedure Act.
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The plaintiff claims damages against the owner and licensee of the North Wollongong Hotel (the first and third defendants) and a person employed in connection with the hotel (the second defendant). It is alleged by the plaintiff that he was assaulted by the second defendant and suffered serious injury as a result. He claims to have suffered a substantial loss of earning capacity and alleges that he has required, and will require, domestic care to assist him in the activities of daily living.
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Mr Chia, who appears on behalf of the plaintiff, relies on material which, if accepted by the Court as to liability and damages, could result in an award for damages which is in excess of the jurisdictional limit of the District Court being $750,000.
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I note that the defendants rely on material which suggests that, even if the plaintiff is successful on liability, the damages which will be awarded will be substantially less than those claimed and will fall well within the jurisdictional limit of the District Court.
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In my view, it is necessary to envisage, for the purposes of s 140(3)(b)(i), that the plaintiff will be successful, not only on liability, but that his claim for substantial damages will also be successful and that there is material, which will, if accepted, warrant an award of damages that is likely to be in excess of the jurisdictional limit of the District Court. I am satisfied of these matters. Accordingly, I am not prohibited from transferring the proceedings to this Court.
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In all the circumstances, I consider it to be appropriate to order that the District Court proceedings referred to be transferred to this Court pursuant to s 140 of the Civil Procedure Act.
Costs
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The plaintiff seeks an order that the costs of the summons be costs in the cause. The defendants seek an order that the plaintiff pay their costs of the transfer.
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Mr Wilson has pointed out that the statement of claim which was filed in the District Court on 28 November 2014 expressly claimed: “Damages in excess of the jurisdictional limit”. He further drew my attention to the statement of particulars which was filed on the same day which listed a number of medical reports. These reports are the very same reports on which the plaintiff relied to show that it was likely that, if he were successful, the damages would be in excess of the jurisdictional limit of the District Court. Mr Wilson also submitted that no explanation has been given by the plaintiff or his solicitors as to why the proceedings were commenced in the District Court, given that, at all material times, the amount claimed was in excess of the jurisdiction of that court.
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Ms Davy adopted the submission of Mr Wilson and contended that there had been considerable costs thrown away by the fact that proceedings were commenced in the District Court and ultimately listed for hearing to commence on 10 October 2016.
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Mr Chia, who is briefed on the summons but not in the proceedings generally, submitted that it was reasonable for the plaintiff to commence the proceedings in the District Court because there was at least the possibility that the defendants would consent to the excess jurisdiction in the District Court. He submitted from the bar table, although it appears to be a matter of speculation, that the motivation of his solicitors may well have been that the District Court proceedings might be cheaper and quicker.
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I am not persuaded that there is any proper basis for considering that the proceedings of the District Court are cheaper or quicker than proceedings in this Court.
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In my view the defendants have amply demonstrated that the plaintiff ought to have commenced these proceedings in this Court. Since the proceedings were commenced there has been no relevant change in circumstances or change of the plaintiff’s assessment of the effects of the injury he is allegd to have suffered. As is apparent from the face of the statement of claim, it was, from at least the date of its filing on 28 November 2014, the view of the plaintiff’s solicitors that the amount claimed by the plaintiff would exceed the District Court’s jurisdictional limit. All that has occurred is that the defendants have refused to consent to the extended jurisdiction. This was always a possibility.
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In these circumstances I do not consider that an order that the costs of the transfer be costs of the cause would do justice to the parties. I am persuaded by the defendants that the appropriate order is that the plaintiff pay the defendants’ costs of the transfer to this Court.
Orders
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I make the following orders:
Order that the proceedings in the District Court of New South Wales be transferred to this Court under s 140(3)(b)(i) of the Civil Procedure Act 2005 (NSW)
Order the plaintiff to pay the defendants’ cost of the application for transfer to this Court.
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Decision last updated: 30 September 2016
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