Dawson v James Henry t/as Mainline Contracting and Anor [2021] NSWSC 1258

Supreme Court New South Wales

Medium Neutral Citation: Dawson v James Henry t/as Mainline Contracting and Anor [2021] NSWSC 1258 Hearing dates: 27 September 2021 Date of orders: 27 September 2021 Decision date: 27 September 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Proceedings 2019/00372446 issued in the District Court of New South Wales at Sydney are transferred to the Supreme Court of New South Wales at Sydney pursuant to s 140(1) and (3)(b)(i) of the Civil Procedure Act 2005 (NSW). (2) I list this matter for directions before the Registrar on 7 October 2021. (3) Costs of the summons are costs in the cause. Catchwords: CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District and Local Courts – Transfer of District Court personal injury proceedings to the Supreme Court Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aitofi v The Council of the City of Sydney [2020] NSWSC 611 Johnstone v State of New South Wales [2006] NSWCA 105 Category: Consequential orders Parties: Jack Dawson (Plaintiff) James Henry trading as Mainline Contracting (First Defendant) Great Lakes Insurance SE (Second Defendant) Representation: Counsel: J Malouf (Plaintiff)

Solicitors: Gerard Malouf & Partners (Plaintiff) Wotton + Kearney (Second Defendant) File Number(s): 2021/242757 Publication restriction: Nil

REVISED Ex Tempore Judgment 1. By way of a Summons filed on 25 August 2021 the plaintiff seeks orders that the proceedings commenced by him in the District Court be transferred to this Court pursuant to s 140(1) and (3)(b)(i) of the Civil Procedure Act 2005 (NSW) ("CPA"). 2. Mr Malouf of counsel appears for the plaintiff on the application. Ms Walker, solicitor, appears on behalf of the second defendant, Great Lakes Insurance, in its capacity as the insurer of the head contractor, Sehez Group Pty Ltd. 3. There is no appearance by the first defendant. The second defendant neither opposes nor consents to the transfer of the proceedings to this Court. The matter is currently listed for hearing in the District Court for four days commencing on 20 October 2021. The plaintiff has sought the consent of the second defendant to unlimited jurisdiction in the District Court but the second defendant has declined to give such consent. 4. As set out in s 140 of the CPA this Court may of its own motion or an application by a party to proceedings before the District Court order that the proceedings be transferred to the Supreme Court. As set out in s 140(3) proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to this Court unless this Court satisfied that: … (a) in the case of a motor accident claim or a workplace injury damages claim— (i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and (ii) that the case involves complex legal issues or issues of general public importance, or (b) in any other case— (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court. 1. Although this matter is a claim for personal injury it is not a motor accident claim or a workplace injury damages claim (that is a claim against an employer) such that s 140(3)(b) applies. 2. The proceedings may not be transferred unless I am satisfied either that: 1. the amount to be awarded to the plaintiff if successful is likely to exceed the jurisdictional limit of the District Court, which is $750,000; or 2. there is other sufficient reason for hearing the proceedings in the Supreme Court. 1. On the plaintiff's case this matter should be transferred because the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court.