Sheedy v State Asphalt Services Pty Ltd

By Summons filed on 2 October 2015 the Plaintiff seeks orders:

So far as is relevant s 146 of the Civil Procedure Act 2005 provides:

Significant to the application is also s 51 of the District Court Act 1973. So far as is relevant that section provides:-

It is agreed between the parties that at the time the Statement of Claim was filed there was no limit to the amount the District Court could award in the case of actions against employers but, at least so far as someone in the position of the First Defendant is concerned, the jurisdictional limit of that court was $750,000.

The District Court proceedings sought to be dealt with were commenced against the First Defendant on 31 July 2013. They arise out of an injury the Plaintiff suffered at premises owned by the First Defendant while the Plaintiff was employed by the Second Defendant. During the hearing before me, the District Court Statement of Claim was not tendered but after I inquired what the claim was, I was provided with a Statement of Particulars filed on 13 September 2013, which included as amounts claimed by the Plaintiff:

An affidavit from the Plaintiff’s solicitor also remarked that at the time of the filing of the Statement of Claim, the Workers Compensation payback totalled approximately $200,000. It now appears to be approximately $523,000. Even ignoring this increase it seems likely that, if successful, the Plaintiff’s damages might well have exceeded $750,000.

I was also provided with a more recent opinion by Senior Counsel for the Plaintiff to the effect that if the plaintiff is successful the damages may well amount to $1,075,450. The opinion contains details of how that figure is calculated. These and the opinion were not challenged and I see no reason not to accept the latter as a realistic assessment of the damages the Plaintiff is likely to receive if he is successful.

By letter of 1 October 2015 the First Defendant has indicated that it is not disposed to consent to the District Court having unlimited jurisdiction. Given that the matter has not been listed for trial, the First Defendant would thus seem to have complied with the time limit referred to in s 51 (2)(b).

No party opposed the transfer of the proceedings to this Court and given the matters to which reference has been made, that order should be made. The First Defendant however objected to the matter being transferred back to the District Court.

The first ground of objection was that the condition in s 146 (1) “that the proceedings could properly have been commenced in the District Court” did not exist because the claim exceeded the jurisdictional limit of that court. The Plaintiff sought to meet this by asserting that as, in the absence of objection by the Defendant, the District Court could give judgment for 150% of the amount stipulated as its jurisdictional limit, and the Plaintiff’s claim fell within this expanded limit, the proceedings were properly commenced.

The First Defendant’s objection is upheld. The problem with the Plaintiff’s argument is that, if the determination as to “properly commenced” is to be determined by what does or might subsequently occur, all actions will be properly commenced. The argument that an action is properly commenced provided that the damages claimed or that can be awarded do not exceed that 150% figure must apply also to an action where the amount claimed or awarded (perhaps many times over the District Court’s jurisdictional limit) depends for its effectiveness on a Memorandum of Consent, which can be filed at any time.

Section 146 (1) of the Civil Procedure Act cannot have been intended to have that sort of operation.

The Plaintiff’s second ground of objection was that the course sought to be implemented by the Plaintiff amounted to an abuse of process calculated to have the District Court adjudicate on claims not initially within its jurisdictional limit but which could be decided free of such a limit because transferred from this Court – See District Court Act 1973. Reliance was placed on a decision of Studdert J in Ge v River Island Clothing Pty Ltd [2001] NSWSC 935 wherein his Honour said, at [20]:-

The Plaintiff sought to meet this argument by drawing attention to s 56 of the Civil Liability Act, asserting that within the next week or so the District Court would be willing to fix a trial date during next April or May, and that any Supreme Court hearing was likely to be attended with additional steps and costs. Against this, counsel for the First Defendant suggested that the conclave process normally employed in this Court would be calculated to assist the parties. I was informed also that the expert evidence is “all largely served” and that on 16 September an Informal Settlement Conference was held.

For matters of the length of what I anticipate this case will take, hearing dates in about May next are available in this Court so I do not regard delay as a significant factor. I accept that costs in this Court will probably be higher, but against the legislative policy of imposing jurisdictional limits on the District Court I do not regard that fact either as of substantial weight.

The Plaintiff’s third ground was that, as a matter of discretion, the Court should not order a transfer back. Given the conclusion at which I have arrived in respect of the First Defendant’s first ground, it is unnecessary for me to make a decision on the third. I should say however that I agree with Studdert J’s description of the Plaintiff’s actions and if I did have to make a decision in the exercise of any discretion I would not order a transfer back to the District Court.

In the result, the prayer for re-transfer of the proceedings to the District Court must be dismissed. In the result the Plaintiff has succeeded in the first prayer but that was not opposed and was necessary principally because the Plaintiff chose to commence proceedings in a Court which, in the circumstances, does not have jurisdiction. The Plaintiff has failed on his second prayer, which was the only one, the subject of controversy. In the circumstances the Plaintiff should pay the cost of the First Defendant.

The Plaintiff also joined the Second Defendant to the application. That Defendant should also have its costs of the Summons but as a submitting Respondent, as it in fact was.

It may be appropriate to add some direction aimed at having the trial proceed without delay but otherwise my orders are:-