Wanago v Bendall

[2020] NSWSC 1614

Supreme Court

New South Wales

Medium Neutral Citation:

Wanago v Bendall [2020] NSWSC 1614

Hearing dates:

06 November 2020

Date of orders:

06 November 2020

Decision date:

06 November 2020

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order that proceedings numbered 2019/245283 in the District Court of New South Wales be transferred to the Supreme Court of New South Wales pursuant to section 140 of the Civil Procedure Act 2005.

(2)   Abridge the time for the filing of a Notice of Ceasing to Act to 4pm Monday 9 November 2020.

(3)   List the proceedings, formerly in the District Court, for directions before the Common Law Registrar at 9am on Monday 16 November 2020.

(4)   Grant any party liberty to restore the matter to the list of the Common Law Registrar on 48 hours' notice.

(5)   Order that the costs of this summons be the costs in the transferred proceedings.

Catchwords:

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts – application to transfer matter from the District Court to the Supreme Court to allow for foreign service under Part 11 of the Uniform Civil Procedure Rules – transfer would promote resolution of matter in just, quick and cheap manner – transfer ordered

Legislation Cited:

Civil Procedure Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural and other rulings

Parties:

Sebastian Wanago (P)
Duncan Bendall (D)

Representation:

Counsel:
N Ghabar (P)
In Person (D1)

Solicitors:
Drexler & Partners Lawyers (P)

File Number(s):

2020/093473

Publication restriction:

Not Applicable

EX TEMPORE Judgment

1. By Amended Summons originally filed 25 March 2020, the plaintiff, Sebastian Wanago, seeks an order for the transfer of proceedings numbered 2019/245283 from the District Court of New South Wales to the Supreme Court of New South Wales, pursuant to s 140 of the Civil Procedure Act 2005.

Plaintiff’s Evidence and Submissions

2. In the course of hearing this application, I have made it particularly plain to Mr Duncan Bendall, who appears in person, that, whatever orders are being made today, the Court is not engaged in any determination of the merits of the claim for damages made by the plaintiff. This summons simply seeks to have the matter heard in this Court rather than the District Court.

3. In support of that Summons, the plaintiff relies upon two affidavits of his solicitor, Dominica Walkowiak. Those affidavits establish that the claim made by the plaintiff is one for damages for personal injury allegedly caused by the negligence of the defendants. The injury suffered by the plaintiff is said to have occurred whilst he was carrying out renovation works at a property in Bray Street, North Sydney owned by the defendants. The plaintiff alleges that the injuries which he sustained on that day were sustained due to the negligence of the defendants.

4. The basis for the application for transfer is that, since the event giving rise for the claim for personal injury occurred and after the plaintiff filed his proceedings, he has learnt that the first and second defendants are now living in the United Kingdom. In those circumstances, having regard to the limitation on the application of Part 11 of the Uniform Civil Procedure Rules 2005 (“UCPR”) which permits service of court documents on individuals and corporations that are living or situated outside of Australia, the plaintiff submits that the interests of justice would support an order for transfer. The District Court cannot exercise the powers contained in Part 11 of the UCPR.

5. The proceedings are slightly complicated by the fact that Mr Michael Downs, a solicitor of Mills Oakley, filed a Notice of Appearance for the two defendants in these proceedings. It is apparent from the evidence that he did so on the basis of instructions he received from an insurance company. Since that time he has received instructions from the relevant insurance company that he is no longer to act for the first and second defendant. The process to enable Mr Downs to withdraw from being the solicitor on the record for the defendants has been commenced, but has yet to be concluded. Mr Skelly has appeared on behalf of Mills Oakley to assist the Court, and I express my gratitude to Mr Downs and Mr Skelly for that appearance.

6. Mr Bendall has appeared today in person (via video link) from the United Kingdom and, although this cannot be a friendly hour of the day in the United Kingdom, Mr Bendall's appearance has enabled me to clarify for him the substance of these particular proceedings today.

7. Mrs Bendall has not appeared. I have received a medical certificate indicating she is unwell and unable to appear. However, I do not regard her absence from these proceedings today as being a reason why the Court should not proceed.

Discernment

8. Having read the evidence and having heard Mr Ghabar's submissions, I am satisfied that this is a matter in which the Court should exercise its discretion to transfer the proceedings from the District Court to this Court.

9. The principal reason for that is that the flexibility of service pursuant to Part 11 of the UCPR has the beneficial consequence that the overriding purpose fixed by s 56 of the Civil Procedure Act, namely that the real issues in the proceedings be determined in a just, quick and cheap manner, can be fulfilled. In my view an order of the kind sought promotes, rather than detracts, from that overriding purpose.

Orders

10. Accordingly I will make the following formal orders:

1. Order that proceedings numbered 2019/245283 in the District Court of New South Wales be transferred to the Supreme Court of New South Wales pursuant to section 140 of the Civil Procedure Act 2005.

2. Abridge the time for the filing of a Notice of Ceasing to Act to 4pm Monday 9 November 2020.

3. List the proceedings formerly in the District Court for directions before the Common Law Registrar at 9am on Monday 16 November 2020. I note that attendance by either Mr or Mrs Bendall on that day is not required, as the plaintiff will be seeking directions consequent upon the transfer for the service of proceedings on Mr and Mrs Bendall.

4. Grant any party liberty to restore the matter to the list of the Common Law Registrar on 48 hours' notice.

5. Order that the costs of this summons be the costs in the transferred proceedings.

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Decision last updated: 13 November 2020