Engwirda v Robinson

1. [1]

   HIS HONOUR: By notice of motion filed on 19 February 2020, the plaintiff, Linda Engwirda, seeks review of a decision of the Common Law Registrar dated 23 January 2020 to refuse her application to have proceedings in the District Court of New South Wales transferred to this Court, and an order that the proceedings be so transferred.

2. [2]

   The plaintiff also sought an order that costs be in the cause. However, at the hearing on 25 March 2020, counsel for the plaintiff noted that this order was no longer pressed and, instead, sought an order that costs be reserved.

3. [3]

   The defendant, Greg Robinson, neither consented to, nor opposed, this application for a review, consistent with his position before the Registrar that he neither consented to, nor opposed, the application for transfer of the proceedings.

Background

1. [4]

   The plaintiff brought an action in negligence against the defendant, commencing proceedings in the District Court at Newcastle by filing a statement of claim and a statement of particulars on 8 February 2019. The claim is said to arise from injuries suffered by the plaintiff on 13 February 2016, while she was a passenger on board a yacht owned and mastered by the defendant, who is also the plaintiff’s father. The plaintiff alleges that, as the defendant sailed the yacht towards the marina at the Royal Motor Yacht Club on Lake Macquarie in Toronto, NSW, he decelerated suddenly and without warning, causing her to be thrown forward and suffer injuries.

2. [5]

   The injuries allegedly suffered by the plaintiff include a fracture to her right knee, which required surgery on 23 February 2016. Post-operative treatment included physiotherapy and four months of splintage. After surgery, complications arose causing the plaintiff to develop deep vein thrombosis (“DVT”) which required treatment for six months. It is also alleged that the plaintiff suffered post-accident falls as a result of her right knee buckling and giving way. Surgery was conducted to remove the right knee “hardware” in October 2017. The plaintiff was aged 45 at the time of the accident.

3. [6]

   On 7 November 2019, the plaintiff filed a summons in this Court seeking to have the proceedings transferred from the District Court to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The transfer application was made on the basis that the quantum of damages likely to be awarded to the plaintiff, if successful, will exceed the jurisdictional limit of the District Court, being $750,000 (“the jurisdictional limit”). The plaintiff is seeking damages in the sum of $1,838,836.90, comprising claims for out of pocket expenses, economic loss, non-economic loss and domestic assistance. The plaintiff submitted that the proceedings were commenced in the District Court rather than the Supreme Court because a report with respect to economic loss was not available to her at that time. She could not delay filing because the three-year limitation period expired on 12 February 2019.

4. [7]

   The application to transfer the proceedings was heard by the Common Law Registrar on 19 December 2019. Oral submissions were made by the parties, with the defendant neither opposing nor consenting to the making of the transfer order.

The Registrar’s reasons

1. [8]

   On 23 January 2020, the Registrar dismissed the summons, giving written reasons for her decision.

2. [9]

   The Registrar noted that, in assessing damages likely to be awarded, an “impressionistic” consideration of the evidence is all that is required, citing Dodd v Wentworth Community Housing Limited [2017] NSWSC 1424 per Campbell J at [16].

3. [10]

   The damages taken into account by the Registrar were from a schedule annexed to the affidavit of Lidia Elena Monteverdi, the plaintiff’s solicitor, dated 7 November 2019. The schedule assessed the plaintiff’s claim as follows:

4. [11]

   The Registrar also considered various medical and expert reports annexed to the plaintiff’s solicitor’s affidavit, as well as medical reports annexed to the affidavit of Erin Eagle, the defendant’s solicitor, dated 28 November 2019.

5. [12]

   The Registrar did not assess each head of damage individually to determine the likely award of damages to the plaintiff, but considered three aspects of the plaintiff’s claim in particular, being non-economic loss; past and future economic loss; and past and future domestic assistance. The Registrar stated, at [20]:

6. [13]

   Having considered these aspects of the plaintiff’s claim, the Registrar concluded that she was not satisfied that the plaintiff’s damages would likely exceed the jurisdictional limit of the District Court, noting:

7. [14]

   The Registrar also noted that the power in s 140 of the Civil Procedure Act is discretionary, and is to be exercised in accordance with the overriding purpose of civil litigation in New South Wales, that is, to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Civil Procedure Act, s 56. The Registrar considered that, but for the summons filed on 7 November 2019, the proceedings would have been ready to proceed to hearing in early 2020, and to allow the transfer application would likely result in significant delay such that the matter would not proceed to hearing until 2021.

The relevant law and legal principles

1. [15]

   Proceedings in the District Court may be transferred to this Court pursuant to s 140 of the Civil Procedure Act, which relevantly provides:

2. [16]

   As the District Court proceedings in this case concern a claim for damages for personal injury, the question to be determined in considering the transfer application is whether the amount to be awarded to the plaintiff, if successful, is likely to exceed $750,000: Civil Procedure Act, s 140(3)(b)(i).

3. [17]

   The approach to be taken under s 140(3)(b)(ii) was discussed by McCallum J, as her Honour then was, in Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337, at [7]:

4. [18]

   In exercising the discretion conferred by s 140, the Court is also to have regard to the competing considerations in ss 56 and 58 of the Civil Procedure Act, as well as to the facts and circumstances of the case, including the procedural history of the litigation: Every v Osborne [2012] NSWSC 1437 per Davies J at [18]; Lazare v City of Sydney Council [2015] NSWSC 1546 per Bellew J at [38]; Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451 per Bellew J at [45]. Sections 56 and 58 of the Civil Procedure Act relevantly provide:

5. [19]

   The Court’s authority to review a decision of a registrar is to be found in r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”). An order of a registrar may be set aside or varied by this Court pursuant to s 121(3) of the Supreme Court Act 1970 (NSW). Rule 49.19 of the UCPR provides:

6. [20]

   The proper approach to an application for review of a decision by a registrar pursuant to r 49.19 of the UCPR and s 121(3) of the Supreme Court Act was discussed by the Court of Appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 396 per Basten JA (Hodgson and Ipp JJA agreeing), as follows:

7. [21]

   As to the onus, if any, that a plaintiff bears on an application to review a decision of a registrar, in Tomko v Palasty (No 2), Hodgson J (Ipp JA agreeing) said:

8. [22]

   It has been observed that a review of a registrar’s decision is not a hearing de novo. In Perpetual Limited v Barghachoun [2010] NSWSC 108, Rothman J stated, at [3]:

The parties’ evidence

1. [23]

   The plaintiff relied upon an affidavit by her solicitor, Ms Monteverdi, affirmed on 7 November 2019, which had annexed to it copies of the plaintiff’s relevant District Court filings, a forensic Chartered Accountant’s report by Kain Elsmore and four medical reports, being two of independent orthopaedic surgeons, Dr Mark Shaw and Dr Gauguin Gamboa, one of a psychiatrist, Dr Joseph Matthew, and, as to a need for domestic assistance, an independent occupational therapist, Gordon Siebel.

2. [24]

   The defendant relied upon an affidavit by his solicitor, Ms Eagles, affirmed on 28 November 2019, and which had annexed to it an expert report by an orthopaedic surgeon, Dr James Powell, which considered certain opinions of Dr Shaw and Dr Gamboa, and a psychiatric report by Dr Doron Samuell, which considered aspects of Dr Matthew’s report.

3. [25]

   The annexures to these two affidavits effectively placed this Court in the same evidentiary position as the Registrar.

4. [26]

   The plaintiff also relied upon an affidavit of Ms Monteverdi affirmed on 19 February 2020 which was read in support of the notice of motion. That affidavit provided a brief chronology and noted that there had been no substantial change in the plaintiff’s circumstances.

The parties’ submissions

1. [27]

   The plaintiff relied upon Hodgson JA’s observations in Tomko v Palasty (No 2), at [9], quoted above, to submit that the Registrar’s judgment had a significant impact on the plaintiff’s rights, so that the Court should be more inclined to intervene.

2. [28]

   The plaintiff submitted that, although the Registrar cited McCallum J’s observations in Tauri v Janlin Circuses, at [7], as to there being no requirement on an application to transfer proceedings to “engage in an individual assessment of each head of damage” and instead, to “arrive at a likelihood, to an extent as a matter of impression but founded on the evidence before the Court”, she did not in fact adopt that approach.

3. [29]

   Rather, according to the plaintiff, the Registrar concluded that the plaintiff’s claim was “inflated” in a number of respects, such that she could not be satisfied that the plaintiff’s damages would exceed the jurisdictional limit of the District Court. The plaintiff submitted that this approach to the evidence of damages sought was impermissible because the plaintiff had not been cross-examined. The plaintiff submitted:

4. [30]

   The plaintiff relied on Tauri v Janlin Circuses to submit that the question on an application to transfer proceedings is whether there is a real chance of the jurisdictional limit being exceeded on the evidence in the application, rather than to apply a level of scrutiny that one would expect in the trial itself. It may be possible to identify parts of the evidence that would not stand up to scrutiny, but that did not apply to any of the evidence in this case.

5. [31]

   In relation to the Registrar’s assessment, and rejection, of the plaintiff’s claim for non-economic loss of 45 per cent of a most extreme case, stating that she saw “no evidence to suggest that the injuries or disabilities … would sound in damages at that level”, the plaintiff noted that the Registrar did not go on to consider, “as a matter of impression”, what level of damages might be established. In particular, the Registrar did not consider whether there was a real chance that damages at least in the order of $200,000, which represents between 30-35 per cent of the most extreme case, would be established, which would have been sufficient, in combination with the damages sought under other heads of damages, to exceed the jurisdictional limit.

6. [32]

   Similarly, in relation to the plaintiff’s claim for past and future economic loss of up to $1,016,313.70, the plaintiff submitted that the Registrar, having concluded that “[o]n the evidence available I am not convinced that the plaintiff will be entitled to anywhere near this amount of damages for economic loss”, did not then consider what range of damages the plaintiff might recover for loss of earning capacity. Further, the Registrar did not explain why she formed the impression that the plaintiff’s economic loss claim was “significantly inflated” and, despite stating that the relevant report, that of Mr Elsmore, would be capable of “considerable scrutiny”, she did not criticise the methodology used by Mr Elsmore, or his actual calculations. Rather, it was submitted that Mr Elsmore’s report was based on a fair summary of the plaintiff’s economic particulars with supporting documentation and entitled the Court to conclude that there was a real chance that the plaintiff would receive at least approximately $400,000.

7. [33]

   In relation to the Registrar’s assessment of the amount claimed under the head of past and future domestic assistance of $350,767.34, the plaintiff noted that the amount was derived from a report by an independent occupational therapist, but the Registrar concluded that her impression was that the amount sought was “inflated”, without explaining the basis for that opinion.

8. [34]

   The plaintiff submitted that the fact that she became a single parent in 2010 and was subsequently unable to spend time away from home did not give rise to an inference that the business suffered financially, as the Registrar’s findings tended to suggest.

9. [35]

   With respect to the Registrar’s statement that the plaintiff suffered a fracture to her right knee and underwent two surgeries, the plaintiff submitted that this fact did not, of itself, speak for or against any particular level of non-economic loss. The plaintiff’s claim for non-economic loss was significant because, firstly, post-surgery complications resulted in the development of DVT which required treatment for six months and prevented the plaintiff from pursuing diving on a social basis; secondly, the plaintiff experienced a number of post-accident falls said to be related to weakness in her knee and therefore consequential to her initial injury; and thirdly, although the plaintiff currently does not require any extensive further hospitalisation, there is a possibility that she will require a knee replacement when aged in her fifties, due to osteoarthritis. It was also submitted that although the evidence demonstrated that the plaintiff’s right knee has united, this could not be taken to infer that she was not experiencing ongoing and serious disability. Indeed, the Registrar’s statement that the plaintiff “continues to suffer ongoing pain and stiffness in her knee” is a concession to the plaintiff’s claim that she would attract a significant amount for non-economic loss.

10. [36]

    The plaintiff also referred to the Registrar’s consideration of s 56 of the Civil Procedure Act and submitted that this provision must be balanced with the requirement that orders be made in accordance with the dictates of justice under s 58. The plaintiff considered that, if the transfer application was not granted, the plaintiff may be unable to recover the full amount of damages to which she is entitled, thereby creating an injustice which outweighs the considerations under s 56.

Consideration

1. [37]

   The damages sought by the plaintiff was the sum of $1,838,836.90 plus costs. In her judgment, the Registrar carefully assessed the evidence as to the plaintiff’s claim in relation to the three most significant heads of damages, as part of the process of determining whether the plaintiff’s prospects of success were such that the jurisdictional limit may be breached. On their face, the concerns expressed by the Registrar as to past and future economic assistance are reasonable, but with no economic loss report in reply, the Registrar’s task of assessment was difficult. On the basis of the evidence, the Registrar concluded that the amounts sought were inflated.

2. [38]

   In my view, the criticism made of the Registrar’s analysis of the heads of damages to the effect that it went beyond the impressionistic approach that is required by the authorities such as Johnstone v State of New South Wales [2006] NSWCA 105 is not made out. An analysis of the damages claimed is unavoidable, in order to make a determination of such an application. In this case, that analysis could only be impressionistic, in view of the paucity of evidence that was before the Registrar.

3. [39]

   Consistent with the Registrar’s approach, it would have been appropriate for the Registrar to go on to determine whether there was a likelihood, or “real chance”, that a lesser quantum of damages would be proved, that would nevertheless exceed the jurisdictional limit. However, that exercise would have been difficult, in the absence of contrary evidence from suitable experts as to economic loss and domestic assistance. The Registrar’s conclusion was that:

4. [40]

   In Lazare v City of Sydney Council, Bellew J rejected an application to transfer proceedings concerning a claim for damages brought against four defendants from the District Court. There were significant differences between that case and the instant case.

5. [41]

   In that case, the first and third of the defendants opposed the transfer, the second did not oppose it and the fourth adopted a neutral position. The first defendant adopted the submissions of the third defendant, so that his Honour had the benefit of a contradictor to the application. In addition, unlike the situation in the instant case, the third defendant had filed expert reports in relation to economic loss that challenged the conclusions of those of the plaintiff. Although the plaintiff in Lazare v City of Sydney Council had filed two reports concerning her claim for damages for domestic assistance, neither was prepared by a consultant occupational therapist, whereas the third defendant had filed a report by a consultant occupational therapist. His Honour accepted that only the third defendant’s expert was suitably qualified.

6. [42]

   In Lazare v City of Sydney Council, the third defendant contended that the plaintiff’s claim for past and future economic loss was “inflated” and her claim for domestic assistance would be “substantially less” than what was claimed. His Honour noted that the calculation of economic loss was based on pre-injury earnings of $1,300 per week, however, the statement of particulars indicated that the plaintiff’s pre-injury earnings were “on average $1,000 pw” and subpoenaed wage records indicated that, in the month prior to the accident, she was earning a net weekly wage of $890, and for the two months before that, her weekly wage was $815.50. Further, although the calculation was based on the plaintiff being totally incapacitated for all forms of work since the accident, there was evidence, including by medical practitioners retained by the plaintiff’s solicitors, that she retained some earning capacity.

7. [43]

   On that basis, Bellew J accepted that the calculation of the plaintiff’s entitlement to damages for economic loss was inflated. In relation to the plaintiff’s claim for domestic assistance, his Honour accepted that the consultant occupational therapist was the only expert on that issue who was suitably qualified. It is also relevant to note that Bellew J’s rejection of the application was based on other factors including the procedural history, as well the plaintiff’s claim of damages being over-stated.

8. [44]

   I assume that what the Registrar meant by her reference to her conclusion being “consistent with the approach taken in Lazare v City of Sydney Council” was that, as Bellew J had done, the Registrar had concluded that the quantum of damages claimed under certain heads was inflated to a point that the application for transfer should be rejected.

9. [45]

   In relation to economic loss, Bellew J was able to identify a significant flaw in the evidentiary basis of the plaintiff’s calculations, whereas the Registrar, not without reason, was sceptical as to whether the plaintiff’s work history, after the filing by the defendant of suitable reports and cross-examination of the plaintiff in due course, would establish a sound base for the calculation of damages that she contended was appropriate.

10. [46]

    I also entertain considerable doubt that the consequences of the plaintiff’s initial knee injury and subsequent issues of DVT and related falls could possibly result in damages under the respective heads of the quantum that is claimed, to a point that I am not satisfied that there is a likelihood of such a result.

11. [47]

    As to whether there is a likelihood that the claim would exceed the jurisdictional limit, the past and future out of pocket expenses alone comprise $175,755.86 and the past s 15B claim, being a claim for damages for loss of capacity to provide domestic services pursuant to s 15B of the Civil Liability Act 2002 (NSW), is $12,892.66. The question then becomes whether there is a likelihood (“a real chance”) that the combined heads of damage of non-economic loss, past and future domestic assistance and past and future economic loss, would exceed $561,351.48. I note that sum is approximately one third of what is claimed under those combined heads of damages.

12. [48]

    The plaintiff’s claim in relation to each of the three relevant heads of damages is supported by a report prepared by a suitable expert. On the face of those reports, and in the absence of any countervailing material in the form of reports as to those issues filed by the defendant, I am unable to fault their contents.

13. [49]

    The largest component of the damages claimed in the statement of particulars is for past economic loss: $217,685.43, and future economic loss: $798,628.27. These figures were advanced in Mr Elsmore’s report, with the addition of the plaintiff’s projected loss of superannuation. As noted earlier, the Registrar had observed: “[o]n the evidence available I am not convinced that the plaintiff will be entitled to anywhere near this amount of damages for economic loss.”

14. [50]

    However, the figure for future economic loss was not the only projection in Mr Elsmore’s report. That projection was based on a 65 per cent reduction in the plaintiff’s earning capacity and a loss of gross income of $140,000 per annum. He provided a range of projections, the lowest being based on a 40 per cent reduction in the plaintiff’s earning capacity and a loss of gross income of $100,000 per annum, which constituted a claim of damages, before accounting for loss of superannuation, of $507,072 which, after taking into account a 15 per cent deduction for vicissitudes, yielded a figure of $460,428. I note that figure would leave a relatively minor amount to be awarded for the other two heads of damages before it would exceed, in total, the jurisdictional limit.

15. [51]

    Mr Elsmore was appropriately guarded in how he based his projections, noting:

16. [52]

    Accordingly, I conclude that on an impressionistic view of the evidence as it presently stands, there is a likelihood (“a real chance”) that, if liability is established, the claim will succeed to a point that the damages will exceed the jurisdictional limit.

Orders

1. [53]

   I make the following orders:

   1. (1)

      Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW), set aside orders (1) and (2) made by the Registrar on 23 January 2020;

   2. (2)

      Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), transfer proceedings 2019/43048 in the District Court of New South Wales to the Supreme Court of New South Wales;

   3. (3)

      Costs are reserved.