New South Wales Supreme Court CITATION : Combe v Ziade [2000] NSWSC 762 FILE NUMBER(S) : SC 10976/00; 20091/00; 20092/00 HEARING DATE(S) : 28 July 2000 JUDGMENT DATE : 31 July 2000 PARTIES : Faye D Combe v Anthony Ziade JUDGMENT OF : Sperling J at 1 In person (Plaintiff/applicant) COUNSEL : B Skinner (Defendant/respondent 10976/00) Ms E Devery (Defendant/respondent 20091/00;20092/00) In person (Plaintiff/applicant) SOLICITORS : Middleton Moore & Bevins (Defendant/respondent) CASES CITED : Baldwin v Commonwealth Bank of Australia (Unreported) NSWSC, 24 July 1996. DECISION : See paragraphs 13 and 14. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVSION PROFESSIONAL NEGLIGENCE LIST SPERLING J Monday, 31 July 2000 20091/00 Faye D COMBE v Anthony ZIADE 20092/00 Faye D COMBE v Anthony ZIADE 10976/00 Faye D COMBE v Anthony ZIADE JUDGMENT 1 HIS HONOUR: This is a matter of Combe v Ziade. So far as is relevant, the history of this matter is as follows: 2 Mr A Ziade, solicitor, claims to be entitled to the payment of legal costs by Ms F D Combe in relation to a Family Law matter and a probate matter. 3 Mr Ziade obtained judgment in the Burwood Local Court for costs in relation to the Family Law matter. Ms Combe has filed a summons in this court appealing from that determination. That is proceedings 20096 of 2000. 4 Mr Ziade commenced proceedings in the District Court for recovery of costs in relation to the probate matter. By her amended defence Ms Combe alleges negligence, making the work done by Mr Ziade worthless or of less value than is claimed. She has also filed a cross-claim against Mr Ziade claiming damages for negligence in both the probate and the Family Law matters. The particulars of negligence in relation to the cross-claim are not identical with those in the defence, although some items appear in both documents. 5 It is alleged that Mr Ziade's negligence deleteriously affected the outcome of the probate matter and the Family Law matter. Consequential financial loss is alleged and consequential damage to Ms Coombe's health. 6 In proceedings 20091 of 2000, and 20092 of 2000 in this court Ms Combe again claims damages for negligence by Mr Ziade in relation to the Family Law matter and the probate matter respectively. The particulars of negligence in these proceedings are much more extensive than in the District Court defence and cross-claim. There appears to be considerable overlap, however, between the allegations of negligence and of consequential damage as between the District Court and the Supreme Court proceedings. 7 The court is informed that the District Court proceedings are listed for hearing on 1 August. That is tomorrow. 8 On 13 July 2000, Ms Combe filed a notice of motion in each of the three proceedings in this court claiming orders that the District Court proceedings be transferred to this court to be linked up with the proceedings here or to replace them; that the hearing date, 1 August, in the District Court be vacated; and that the District Court proceedings be dismissed or stayed. Strictly speaking that application should have been by summons, but that is not a matter of importance. 9 Ms Combe relies on an affidavit sworn by her in support of the notices of motion. The ground relied on for the orders sought is that a determination of the District Court proceedings may give rise to an issue estoppel which could affect the outcome of the Supreme Court proceedings adversely to her. I proceed on the basis that this might well occur as matters stand. 10 In years gone by, it was thought appropriate to remove proceedings into the Supreme Court from the District Court where there was a common issue in order to avoid an issue estoppel arising from an earlier hearing of District Court proceedings which could affect the outcome of proceedings pending in the Supreme Court. That practice was largely concerned with motorcar accident cases where the determination of a property damage claim for a few hundred pounds could affect the outcome of a claim for personal injuries potentially worth hundreds of thousands of pounds. This was thought to be inappropriate. 11 On the other hand, it was also not uncommon in those days for the determination of claims in the Workers' Compensation Commission of New South Wales, as it then was - sometimes quite small claims - to affect the outcome of much more substantial claims for damages for the same alleged injury pending in the Supreme Court, by application of the doctrine of issue estoppel. That situation was not thought to be so inappropriate as to require correction by legislation. 12 A power to transfer is discretionary. Historically, considerations, such as complexity and the amount of money involved have been regarded as relevant. However, the progressive enlargement of the jurisdiction of the District Court has made such considerations less powerful. The District Court now has unlimited jurisdiction as to amount in some cases and commonly hears complex cases, including negligence cases against doctors, solicitors and other professional people which, in days gone by, would have been considered inappropriate to be heard in the District Court. 13 This change of attitude is reflected in the decision of Young J in Baldwin v Commonwealth Bank of Australia . (Unreported) NSWSC, 24 July 1996. I think it would now be a rare case in which it would be appropriate to remove proceedings into the Supreme Court against the wishes of a litigant who has exercised a prima facie entitlement to have proceedings heard for whatever reason in the jurisdiction of their choice. I am not persuaded that this is such a case, whether by reason of the amount involved or by reason of complexity or for any other reason. The notices of motion are accordingly dismissed. 14 Application is made for costs of the notice of motion. Costs ordinarily follow the event. In the circumstances of this case there is no reason why the ordinary rule should not apply. Accordingly, the applicant is ordered to pay the respondent's costs of the notices of motion. Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.