Etuate Tavai v Salini Impregilo S.P.A [2021] NSWSC 180

Supreme Court New South Wales

Medium Neutral Citation: Etuate Tavai v Salini Impregilo S.P.A [2021] NSWSC 180 Hearing dates: 04 March 2021 Date of orders: 04 March 2021 Decision date: 04 March 2021 Jurisdiction: Common Law Before: Garling J Decision: Notice Motion filed 26 February 2021 dismissed Catchwords: CIVIL PROCEDURE – application to transfer matter to District Court – whether matter could have been properly brought in the District Court – proximity to Supreme Court hearing date – transfer refused. Legislation Cited: Civil Procedure Act 2005 No 28 Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: Etuate Tavai (P) Salini Impregilo S.P.A (D1) Freyssinet Australia Pty Ltd (D2) Salini Australia Pty Limited (D3) Representation: Counsel: A Oag (P) H Cooper (D1, D3) D Talintyre (D2) File Number(s): 2018/00249699 Publication restriction: Not Applicable

EX TEMPORE Judgment 1. This is an application by Notice of Motion filed on 26 February 2021, by the plaintiff, Mr Tavai, for an order that the proceedings be transferred to the District Court and consequential orders. 2. The plaintiff claims damages as a result of injuries he suffered on 7 April 2016, while working on the North West Rail construction site. At that time, he was employed on the site in a role which involved manual labour on his part. He was receiving an average net weekly wage of about $1,700. 3. As a consequence of the injury he sustained, the plaintiff initially was unable to work at all but, as it appears from an Amended Statement of Particulars filed on 13 September 2018, he was later able to work from time to time but not in the same role as that which he formerly occupied. At no time since the injury has the plaintiff been in receipt of the same average net weekly wage. 4. The plaintiff has undergone surgery on two occasions on his left knee, which is the site of his injury. 5. The plaintiff will shortly turn 38 years old and it would appear from the tendered medical report, that he has generally worked in manual labour involving a degree of physical exertion of the kind that he was performing when he sustained his injury. 6. On the material before the Court, there is no doubt that his injury was sustained at work and there is no doubt that his injury continues to cause pain and complications, including restriction of movement, in his left knee. 7. The report of an orthopaedic surgeon, Dr James Bodel, records his expert opinion that the plaintiff's prognosis remains guarded because of articular cartilage damage. Dr Bodel described the plaintiff's future treatment regime as being "very difficult to manage". He said that in the distant future, the plaintiff would need to consider a knee replacement and that it is clear he would have ongoing deterioration in the use of his knee due to post-traumatic osteoarthritis. He concludes with this expression: "The effect of the degeneration will be increased pain and stiffness and loss of function. This will lead to the inevitable total knee replacement that I have indicated." 1. These proceedings were commenced on 14 August 2018. At that stage, the plaintiff had undergone the two operative procedures, to which I have earlier referred and, it would appear, assuming the Amended Statement of Particulars was accurate, that he had not worked at that time in the same duties which he was performing when he was injured, but he had periods of light duty work which he had ceased three months before the claim was filed. In that claim, in addition to non-economic loss, the plaintiff claimed ongoing medical and paramedical treatment and also significant economic loss, including loss of superannuation. 2. The proceedings are fixed in this Court for a hearing for five days in April 2021 and have been so fixed since 3 April 2020. Extensive directions have been made to ensure that the proceedings are ready for a hearing next month. 3. The first and third defendants oppose the transfer to the District Court. They submit that the evidence does not support any reason to consider that the factual circumstances of the claim have changed since the proceedings were commenced and, accordingly, it cannot be thought that it would be reasonable to now transfer the proceedings if it was originally thought that the proceedings were properly commenced in the Court. The defendants submit that in considering any discretionary order of the Court, the Court would have regard to the lateness of the application and, in particular, the proximity of the hearing date. 4. The first and third defendants also submit that any order under s 146 of the Civil Procedure Act 2005 (the "Act") which is sought or any application of r 42.34 of the Uniform Civil Procedure Rules 2005 (the "UCPR") with respect to costs, need to be considered having regard to the overriding purpose contained in s 56 of the Act. 5. The second defendant neither consents to nor opposes this application. 6. Section 146 of the Act makes provision in ss 146(1) and 146(4) with respect to transfer of proceedings to the District Court. Section 146(1) of the Act provides that the Court may order that proceedings be transferred to the District Court if it is satisfied that the proceedings could have properly been commenced in the District Court. Section 146(4) provides that the Court is to transfer personal injury proceedings to the District Court unless the Court is satisfied, in the case of a workplace injury damages claim (which this is in part) that the amount to be awarded to the plaintiff if successful is likely to be more than $1 million and that the case involves complex legal issues or issues of general public importance. 7. The evidence, such as it is, does not satisfy me that the proceedings could properly have been commenced in the District Court. Indeed, the submissions from the first and third defendants on that issue were brief, included no reference to the particular facts and circumstances of this claim, and did not provide any evidence at all as to the proposition that they could have been properly commenced in the District Court. Indeed, the evidence of the plaintiff, the applicant on this Motion, did not really address that issue either. 8. If the threshold is to be crossed so as to permit a transfer of proceedings, in my view the Court needs to have evidence from which it can draw the conclusion required of it, namely, that the proceedings could properly have been commenced in the District Court. There is no such evidence before the Court. 9. In those circumstances, I cannot be satisfied that the power in s 146 of the Act is enlivened to transfer the proceedings to the District Court. Even if that power were enlivened, I would not as a matter of discretion have ordered the transfer of these proceedings. 10. First, it is clear that the claim is a substantial one. It may or may not reach or exceed the threshold in the District Court - I do not know because I do not have all of the material before me, and I do not have any expression of expert opinion about the potential quantum of damages from any legal practitioner on the part of the plaintiff. 11. Secondly, the proximity of the hearing date in this Court, and the costs which have been incurred by the parties in preparation for that hearing, would be wasted and the allocation of that time in this Court would also be wasted. This would have a deleterious effect on other litigants in the Court and the ability of the Court to provide them with an early hearing date. 12. There is no evidence as to when the proceedings might be heard in the District Court. The simple fact of the matter is they would not be heard more quickly in the District Court than they would be heard in this Court. On the contrary; the delay would be increased. 13. Thirdly, to the extent that it may be relevant, I note that counsel for the first and third defendants accept on behalf of their clients that the continuation of the proceedings in this Court is, having regard to the proximity of the hearing date, warranted as that term is used in r 42.34(2)(a) of the UCPR. I note that that acceptance did not extend to the issue of whether the commencement of the proceedings in this Court was warranted. 14. Whether or not the plaintiff succeeds in obtaining a judgment of more than $500,000 (which is the threshold set out in r 42.34) is a matter upon which I can express no opinion. If there was, in truth, a real fear on the part of the plaintiff's lawyers that by reason of a change in circumstance that issue had arisen, I would have expected to have been informed of it by evidence. There is no such evidence. 15. In all of the circumstances, first because the plaintiff has not satisfied the Court of an essential element, namely that the proceedings could properly have been commenced in the District Court and, secondly, as a matter of discretion having regard to the proximity of the hearing date and the need of the Court in considering the making of any orders of this kind to ensure that any orders that are made promote the overriding purpose set out in s 56 of the Act, I dismiss the Notice of Motion.