Thorn v Kelly - [2016] NSWSC 1748

Supreme Court

New South Wales

Medium Neutral Citation: Thorn v Kelly [2016] NSWSC 1748
Hearing dates: 6 December 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under s 140 Civil Procedure Act 2005, transfer proceedings no. 2015/ 326714 from the District Court to the Supreme Court;
(2) Direct that the proceedings be case managed in this Court concurrently with proceedings no. 2016/74936, between Ross Monteleone and Andrew Thorn and Thorn Transport Pty Ltd;
(3) List both matters for directions before the Common Law Case Management Registrar at 9:00 a.m. on 10 February 2017;
(4) The Thorn parties’ costs of the summons are costs in the cause.

Catchwords: PROCEDURE – personal injury – transfer of proceedings from District to Supreme Court – contested transfer – similar issues in proceedings in different courts - order made
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56, s 140
Workers’ Compensation Act 1987 (NSW) s 151Z
Cases Cited: Government Insurance Office of New South Wales v C.E. Donald (1991) 25 NSWLR 493
Harbourside Catering Pty Ltd v TMG Developments Pty Ltd [2006] NSWSC 631
Manners v Transfield Pty Ltd (1992) 110 ALR 70
RCR Resolve FM v Serco Australia [2014] NSWSC 1477
Starkey v Pike (unreported, District Court of New South Wales, 10 June 2005)
Turner v Manier [1958] VR 350
Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
QBE Workers’ Compensation (NSW) Ltd v Dolan [2004] NSWCA 458
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34
Category: Procedural and other rulings
Parties: Andrew Thorn (First Plaintiff)
Thorn Transport Pty Ltd (Second Plaintiff)
William Andrew Kelly (First Defendant)
William Richard Kelly (Second Defendant)
Margaret Jane Kelly (Third Defendant)
Representation:
Counsel: D. Kelly (Plaintiffs)
T. Brennan (Respondents)
Solicitors: Gillis Delaney Lawyers, (Plaintiffs)
A.R. Conolly & Company (Defendants)

File Number(s): 2016/311601

By summons filed on 19 October 2016, the plaintiffs, whom I will refer to as the Thorn parties, seek an order that proceedings no. 2015/326714 in the District Court be transferred to this Court to be heard with proceedings no. 2016/74936 commenced in this court.
Both sets of proceedings are concerned with the consequences of injuries received by Mr Ross Monteleone in an industrial accident which occurred on 15 March 2014.
The proceedings in the District Court are a claim for statutory indemnity brought by the defendants to the summons, whom I will refer to as the Kelly parties, under s 151Z(1)(d) Workers’ Compensation Act 1987 (NSW). The proceedings in this Court are Mr Monteleone’s claim for damages for personal injury. The Thorn parties are the defendants in each set of proceedings.
For present purposes, it is sufficient to state that Mr Monteleone’s case is that he was employed by the Kelly parties as a station and stock hand at their property, “Little Narrawa”, at Rugby, between Boorowa and Crookwell, New South Wales. The Thorn parties…

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 Thorn v Kelly

Details

AGLC: Thorn v Kelly [2016] NSWSC 1748
Case: [2016] NSWSC 1748
Decision Date: 09 December 2016

CaseChat Overview and Summary

The parties involved in this case are Thorn, the plaintiff, and Kelly, the defendant. The dispute pertains to a personal injury claim, with the plaintiff seeking damages from the defendant for injuries sustained in a motor vehicle accident. The case was initially heard in the District Court, but was transferred to the Supreme Court. The transfer was contested by the plaintiff, who argued that the issues in the Supreme Court were significantly different from those in the District Court. The Supreme Court was tasked with determining whether the transfer was appropriate and whether the issues in the two proceedings were similar enough to warrant a transfer.

The legal issues before the court were whether the transfer of proceedings from the District Court to the Supreme Court was justified, and whether the issues in the two proceedings were similar enough to warrant such a transfer. The court had to consider the nature of the proceedings, the issues raised, and the potential for a more efficient resolution of the dispute in the Supreme Court. The court also had to consider the potential for prejudice to the plaintiff if the proceedings were transferred.

In determining the appropriate course of action, the court considered the nature of the proceedings and the issues raised in both courts. The court found that the issues in the two proceedings were similar enough to warrant a transfer, and that the transfer would not cause significant prejudice to the plaintiff. The court also found that the transfer would allow for a more efficient resolution of the dispute, as the Supreme Court had the capacity to deal with more complex cases. The court therefore upheld the transfer of proceedings from the District Court to the Supreme Court. The final orders of the court are not provided in the text.

Orders