Goolagong v State of New South Wales

1. [1]

   This is an application to transfer a nervous shock or pure mental harm proceeding from the District Court to the Supreme Court.

Proceedings in the District Court

1. [2]

   The plaintiff in this Court is one of two plaintiffs in the District Court. Meaning no disrespect, I use their first names for clarity.

2. [3]

   The plaintiff in this Court, Priscilla, has proceedings on foot in the District Court together with her brother, Ivan Jnr, in respect of the death of their father, Ivan Snr, while in custody.

3. [4]

   I have in evidence before me the pleadings that have been filed in the District Court and the expert evidence that has been served by both parties.

4. [5]

   The allegations include:

   1. (1)

      failure to comply with asserted obligations under the Crimes (Administration of Sentences) Act 1999 (NSW) (‘CAS Act’) to facilitate an application for early release when it was known that the deceased would not likely survive his sentence;

   2. (2)

      failure to provide adequate medical, palliative and cancer care; and

   3. (3)

      failure to provide adequate cultural care.

5. [6]

   Priscilla has asserted that their claims are worth $70 million or, in one piece of correspondence with the Court, $290 million.

6. [7]

   In the District Court, Priscilla pleads that she suffered injuries including complex bereavement disorder, major depressive disorder and generalised anxiety disorder. Ivan Jnr pleads that his injuries include depression and anxiety.

7. [8]

   This claim is a claim “for damages arising from personal injury or death”, so s 140(3)(b) of the Civil Procedure Act 2005 (NSW) applies. This means that proceedings are not to be transferred to the Supreme Court unless the Court is satisfied that (i) the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit; or (ii) there is other sufficient reason.

8. [9]

   The jurisdictional limit in the District Court is $1.25 million.

Subparagraph 140(3)(b)(i): whether award is likely to exceed the jurisdictional limit

1. [10]

   The principles are set out in the decision of this Court in Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337 (‘Tauri’) at [7]. In particular:

   1. (1)

      The Court is not required to engage in a preliminary trial, nor to engage in an individual assessment of each head of damage: Johnstone v State of New South Wales [2006] NSWCA 105 (‘Johnstone’) at [23].

   2. (2)

      The task is to arrive at a likelihood, to an extent a matter of impression, but founded on the evidence before the Court: Johnstone at [22].

   3. (3)

      In this context, “likely” means a real chance: Cubrilo v Veljovic [2015] NSWSC 367 at [9]; Parker v M.I.D Plumbing Services Pty Ltd [2017] NSWSC 1060 at [16].

2. [11]

   While the Court is not required to engage in an individual assessment of each head of damage, the Court’s assessment can include a consideration of the relevant heads of damage: Restaino v Urban Purveyor Group [2021] NSWSC 1164 at [6] per Beech-Jones CJ at CL.

3. [12]

   The applicant bears the onus of satisfying the Court that there is sufficient cause to transfer the proceedings so that justice is best served between the parties: Parry v WGE Engineering [2003] NSWSC 337 at [3].

4. [13]

   It would not ordinarily be appropriate for the Court to pre-empt the findings of the trial judge as to the credibility or reliability of the evidence of lay witnesses: Tauri at [29].

5. [14]

   Priscilla’s expert evidence includes evidence from:

   1. (1)

      Dr Richa Rastogi, a psychiatrist, dated 19 October 2022; and

   2. (2)

      Dr Watson, a psychiatrist, dated 29 June 2023.

6. [15]

   It is not necessary to summarise the whole of these reports, mindful that the Court’s ultimate assessment is a matter of impression based on the evidence before the Court. I have read the reports carefully. If accepted at final hearing, they are likely to support an award of damages for non-economic loss, modest future out-of-pocket expenses and perhaps domestic assistance. However, they do not suggest that there is a real chance of the damages award approaching or exceeding the District Court jurisdictional limit. The plaintiff has not worked for at least 20 years, and she had pre-existing depression and other significant contributors to her mental health, unrelated to the defendants’ alleged wrongdoing.

7. [16]

   On the evidence before me, I am unable to be affirmatively satisfied that there is a real chance of Priscilla being awarded an amount which is greater than (or even approaching) the jurisdictional limit of the District Court.

8. [17]

   The summons in this Court has only been filed by Priscilla. Ivan Jnr is not named as a party to this transfer application but he attended by AVL and made submissions in support of the application for transfer.

9. [18]

   I have been provided with, and have considered, the evidence served by Ivan Jnr in the context of considering whether to accede to Priscilla’s application, recognising that it was an application for the whole of the proceedings in the District Court to be transferred.

10. [19]

    Ivan Jnr relies on expert reports from:

    1. (1)

       Dr Ash Taykar, a psychiatrist, dated 19 June 2022; and

    2. (2)

       Dr Marshall Watson, a psychiatrist, dated 29 June 2023.

11. [20]

    The evidence if accepted at final hearing is likely to support an award of damages for non-economic loss and modest future out-of-pocket expenses. While Ivan Jnr’s claim does include an alleged material impact on his earning capacity, his own evidence indicates significant pre-existing conditions, other major contributing factors unrelated to the defendants’ alleged wrongdoing, and less severe symptoms than Priscilla.

12. [21]

    The evidence does not suggest that there is a real chance of the damages approaching or exceeding the District Court jurisdictional limit.

13. [22]

    Priscilla has put on a significant amount of other material as part of her application. It includes the findings of the Deputy State Coroner in respect of Ivan Snr’s death, at least some parts of the brief of evidence before the State Coroner, transcripts, submissions and some medical evidence in relation to Ivan Snr’s death.

14. [23]

    I have read all the material. I recognise that these matters cause her grief and distress. I do not doubt the sincerity of that grief, nor do I doubt that she honestly believes all of the matters she submitted to me. However, my assessment as to whether any quantum is likely to exceed the jurisdiction of the District Court must be founded on the evidence before me.

15. [24]

    In submissions before me, the plaintiff made allegations about the circumstances of her father’s death which are not reflected in the pleadings in the District Court or in the objective evidence placed before me. It is neither necessary nor appropriate for me to make findings about that, save to say that those submissions do not persuade me that there is a real chance that any quantum will exceed the District Court’s jurisdictional limit.

16. [25]

    Priscilla has also provided long letters she has sent to persons including the District Court Registrar and the State Attorney General, which are in the nature of submissions or particulars as to her grievances in connection with her father’s death. They include assertions that Priscilla claims amounts in the tens of millions or perhaps hundreds of millions of dollars on behalf of herself and her siblings. I have reviewed all of this material carefully. None of it enables me to find, on evidence, that there is a real chance of Priscilla (or her brother Ivan Jnr) being awarded more than the District Court’s jurisdictional limit if she is successful.

Subparagraph 140(3)(b)(ii): other sufficient reason

1. [26]

   I am not persuaded that there is any other sufficient reason to warrant transfer of the matter to the Supreme Court.

2. [27]

   In saying this, I recognise the importance of these matters to Priscilla and her siblings. However, I do not consider that to be a sufficient reason for the transfer. I particularly want to stress that while the District Court is sometimes described as a “lower court” in the sense that it has a lower jurisdictional limit, in no sense should it be regarded as a court to which the “lower classes” are relegated, as was submitted by Priscilla. In declining to order a transfer, I do so recognising the importance to Priscilla and Ivan Jnr of their claims.

3. [28]

   I accept Priscilla’s submission that this is a serious matter. I regard that as consistent with it being dealt with by the District Court.

4. [29]

   While the plaintiff said she does not feel it is appropriate for her claim to be in the District Court, and that she is unhappy with the way she has been dealt with by at least one Registrar in that Court, that does not provide a proper basis for me to order a transfer to this Court.

5. [30]

   Priscilla asserts that the matter is and was a public interest matter and she says that, “the public has a right to know what these departments have failed and turned a blind eye [to].” Accepting as I do that an aboriginal death in custody is a public interest matter, there has been a coronial inquest with public findings. The District Court proceedings, like proceedings in this Court, will be conducted subject to the same legislative regime (the Court Suppression and Non-publication Orders Act 2010 (NSW)) that prioritises open justice.

6. [31]

   Priscilla submits that a transfer would “ensure that [her claim] addresses a wider range of specific matters of all parties in the inquest …” and that it “should not be delayed any longer”. On the material before me, there is no reason to think that there will be any delay arising from the matter remaining the District Court. As to the suggestion of addressing a wider range of matters, neither in this Court nor in the District Court would there be conducted a roving inquiry into the plaintiffs’ perceived grievances. Focus will be on pleaded and arguable causes of action, mindful at all times of the guiding principles of civil litigation.

7. [32]

   Ivan Jnr adopts Priscilla’s submissions and stresses that dragging out these proceedings means more trauma and more impact on his health. He said he just wants this to finish. Ivan Jnr’s desire is readily understandable. It is desirable the conduct of the proceedings not be dragged out. I am not persuaded that this objective would be served by the proceedings being transferred to this Court.

8. [33]

   For these reasons, I do not accept that there is sufficient reason for transferring the proceedings to this Court. Section 140(3) accordingly prohibits its transfer.

Costs

1. [34]

   As to costs the defendant seeks an order that the plaintiff in this Court pay its costs. I recognise the sincerity of the plaintiff’s grief, her distress as to the circumstances of her father’s death and her belief that the proceedings should be heard in this Court.

2. [35]

   I need to be mindful that an order for the payment of costs is principally a matter of compensation to the successful party. This is civil litigation in which the plaintiff seeks damages. While I recognise her perception as to the wider public interest I am not persuaded that this warrants a departure from the usual position which is that costs should follow the event.

3. [36]

   Accordingly, I make the following orders:

   1. (1)

      Summons dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.