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. 6 Counsel for the claimant, Mr Mooney, who appears with Mr Morgan, stated to the Court that in his view the proposal made by counsel for the opponent was one that the claimant should and would accept. 7 The power for the Supreme Court to transfer proceedings from the District Court to the Supreme Court is found in s145 of the District Court Act. Subsection (2) states that: "An action for damages in respect of personal injury or death (other than a motor accident claim or work injury damages claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000, or that there is other sufficient reason for trying the action in the Supreme Court." 8 Subsection 3 provides that: "A motor accident claim or work injury damages claim may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance." Undoubtedly, this is a work injury damages claim. 9 An adjournment was then taken to give counsel an opportunity to consider the question of whether this Court could be satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000. 10 Upon the matter resuming, counsel for the claimant referred to the report of Dr Patrick of 15 December 2003, particularly that part where the opinion is expressed on re-examination of the claimant on 11 December 2003. "Re-examination of Mr Brian Middleton on 11 December 2003 does not cause me to significantly alter my opinion as expressed on the final page (page 3) of my report to you of 28 January 2002 – except with regard to assessment. Since last seen, there has been a period about the time of further block injection treatments where there has been significant improvement in his symptomatology, to the point where he felt that complete resolution of symptoms was likely. Since that time however, he has gone backwards somewhat, with worsening of left upper limb symptoms and development of some low back symptoms going into the left lower limb as described. The situation clinically at the left arm is consistent with a severe reflex sympathetic dystrophy syndrome (complex regional pain syndrome type 1), with some 'shoulder/hand syndrome', the whole situation being compounded by either voluntary, or involuntary disuse of the left arm – probably the latter, as a result of his significant symptomatology/allodynia. I believe Mr Middleton does require further investigation (not for purposes of assessment) to exclude systemic condition, and it would be reasonable, I believe to proceed to MR Imaging of the brain, and MRI full spine, and also blood tests, including thyroid function tests – full blood count – electrolytes, urea, creatinine, liver function tests, IIV, rheumatoid factor, ANA etc. As he presents, Mr Brian Middleton is effectively incapacitated for all work, and he may be regarded as having permanent ongoing partial work incapacity in that he is not fit to carry out work involving the physical use of the left arm or hand. Following re-examination of him, in my opinion, Mr Brian Middleton has a permanent loss of efficient use of the left arm at or above the elbow, including loss of use below the elbow, of 50%." 11 In addition, counsel for the claimant, without objection, tendered to the Court a document prepared by him and headed "Plaintiff's schedule of damages" (Exhibit A). Counsel explained how the figures in that schedule were arrived at. The amount of anticipated recovery was calculated at $1,183,716. On the basis of that material, I am satisfied that the amount to be awarded to the plaintiff, if successful, would be likely to exceed $1,000,000. I am also satisfied that this is a case which involved what could be described as a complex legal issue in the sense that it gave rise to an issue about which an experienced judge in the District Court felt great difficulty. As a result an attempt was made to bring the matter before the Court of Appeal in the manner I have described. 12 In all these circumstances, I am satisfied that pursuant to s145(3) of the District Court Act it is appropriate that this Court order that the action be removed into the Supreme Court for hearing by the Supreme Court. That leaves it for the Supreme Court to determine what consequence follows from the filing by the plaintiff of the notice of discontinuance. 13 I note the agreement of the opponent that if the application for the matter to proceed succeeds, despite the notice of discontinuance, or the notice of discontinuance is rescinded or set aside, and, the necessary medical examination by the opponent's medical advisers is obtained, the matter will, by consent, proceed to mediation. Of course, depending upon the result of that, the proceedings will then either not go ahead or go ahead. 14 There remains only the question of costs of today's application. The opponent has pointed out that the application was ill conceived, and on that basis submits that the claimant should pay the opponent's costs. Unfortunately the matter has proceeded in the way it has because the application to reinstate the proceedings was not determined in the District Court. 15 Bearing that in mind, and bearing in mind the result that has been achieved today, as a result of the great assistance that the Court has received from counsel on both sides, no doubt supported by their solicitors and clients, I think it appropriate that the costs of today should be costs on the hearing of the motion in the Supreme Court. 16 Therefore, the order the Court now makes is that these proceedings be removed into the Supreme Court and that the costs of today be the costs in the application before the Supreme Court to set aside the notice of discontinuance. The orders of the Court will be as I have announced them. 17 SANTOW JA: I agree. 18 PEARLMAN AJA: I also agree. ********** 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.