MIDDLETON v CAMPBELL BROTHERS LTD [2005] NSWCA 50

New South Wales Court of Appeal

CITATION: MIDDLETON v CAMPBELL BROTHERS LTD [2005] NSWCA 50

HEARING DATE(S): 4 March 2005

JUDGMENT DATE: 4 March 2005

JUDGMENT OF: Sheller JA at 1; Santow JA at 20; Pearlman AJA at 21

DECISION: 1. Proceedings be removed into the Supreme Court; 2. Costs of today be costs in the application before the Supreme Court to set aside the notice of discontinuance.

CATCHWORDS: Transfer of proceedings to Supreme Court from District Court

Supreme Court Act 1970 LEGISLATION CITED: District Court Act 1973

CASES CITED: N/A

Brian Middleton - Claimant PARTIES: Campbell Brothers Ltd - Opponent

FILE NUMBER(S): CA 40554/04

P J Mooney/D C Morgan - Claimant COUNSEL: N A Confos - Opponent

Steve Masselos & Co - Claimant SOLICITORS: Moray & Agnew - Opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 12807/01

LOWER COURT JUDICIAL OFFICER: Murrell SC DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40554/04 DC 12807/01

SHELLER JA SANTOW JA PEARLMAN AJA

Friday, 4 March 2005 MIDDLETON v CAMPBELL BROTHERS LTD Judgment 1 SHELLER JA: This is an application by summons made by Brian Middleton claiming a determination "by declaration or otherwise pursuant to s48(2)(e) of the Supreme Court Act 1970 that a judge of the District Court of New South Wales has the jurisdiction/power to make the orders sought by the claimant in the Notice of Motion filed on 12 December 2003". 2 The opponent named in the summons is Campbell Brothers Ltd. The notice of motion referred to was a notice of motion filed in the District Court in which the plaintiff, the claimant in this Court, sought leave to reinstate proceedings No 12807 of 2001. In those proceedings the opponent was the defendant. In the District Court the plaintiff had, on 24 May 2002, filed a notice of discontinuance of the proceedings (12807/2001). In broad terms, the plaintiff's reason for discontinuing was that after filing the statement of claim on 23 November 2001 to recover damages for a work related injury he had experienced a significant improvement and was confident in the complete resolution of his symptoms. Therefore it was unnecessary for the proceedings to go ahead. By September 2002 his condition had deteriorated to such an extent that he gave instructions to pursue his legal rights. 3 The application was heard by her Honour Judge Murrell SC on 15 April 2004. In the course of what was said, and I do not mean any disrespect, to be a judgment of 15 April 2004, her Honour expressed reservations about her power to make the order sought and, ultimately, made no such order, but, on an application by the plaintiff, adjourned the matter. Her Honour said that the adjournment application was to enable an application to be made for transfer of the proceedings into the Supreme Court. 4 When the summons was called on for hearing before the Court this morning, the Court expressed reservations about the propriety of the application, framed as it was to this Court, seeking to declare the jurisdictional power of the District Court in a case where, faced with the same question, the District Court had not passed upon it, but adjourned the proceedings. 5 After the argument about this question had proceeded, and submissions had been heard from both sides, the hearing was adjourned following questions that had been raised by the Court. These included whether there was any possibility of the parties agreeing to the matter being sent out to mediation. When the hearing resumed, counsel for the opponent, Mr Confos, stated from the bar table that the opponent would consent to the transfer of the proceedings from the District Court to the Supreme Court. Counsel went on to say that once the motion to reinstate the proceedings by the claimant was heard and determined in the Supreme Court after such transfer and if the application by the plaintiff was successful, then after the plaintiff had been medically examined on behalf of the defendant, the defendant would consent to the matter going to mediation.