Mason v Telstra Corporation Limited [2006] NSWSC 1334

New South Wales Supreme Court

CITATION : Mason v Telstra Corporation Limited [2006] NSWSC 1334

HEARING DATE(S) : 04/12/06

JUDGMENT DATE : 6 December 2006

JUDGMENT OF : Associate Justice Malpass

DECISION : The application fails. The summons is dismissed. No order is made as to costs.

CATCHWORDS : Application for transfer of proceedings to Supreme Court - greater economic loss claim than first envisaged - consent by defendant to unlimited jurisdiction of District Court - threshold requirements to be satisfied - discretionary power of Court to order transfer - District Court more appropriate forum - delay in making of application - delay in getting case heard in Supreme Court.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW)

PARTIES : Colleen MASON TELSTRA CORPORATION LIMITED

FILE NUMBER(S) : SC 14401/05

COUNSEL : Mr A McQuillen (Pl) Mr D O'Dowd (Def)

SOLICITORS : G H Healey & Co (Pl) Sparke Helmore Lawyers (Def)

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

6 December 2006

14401/05 Colleen MASON v TELSTRA CORPORATION LIMITED

JUDGMENT 1 HIS HONOUR: The plaintiff alleges that she sustained personal injury in an accident on 20 August 2001 ("a workplace injury"). She had been an acting head teacher of hairdressing at TAFE. An application to be head teacher was unsuccessful. She gave up her employment on 12 August 2005. 2 She brought a claim for damages in the District Court on 27 March 2002. It went to arbitration. Her husband died. The defendant sought a re-hearing. 3 On 30 May 2005, the proceedings came before Hughes DCJ for the re-hearing. He dealt with an application for adjournment made by the plaintiff (founded on what was said to be a change in circumstances). The plaintiff's version of what happened before him appears in an affidavit sworn on 12 July 2006 (the transcript is before the Court). She contends that by reason of what happened she has lost confidence in the District Court and has become fearful that she may not get a fair hearing in it. The thrust of what is contended on her behalf is, inter alia, that the Judge may have been perceived as being insensitive and pre-judged maters. 4 On 21 September 2005 she filed a summons in this Court. The summons seeks an order that the proceedings be transferred to this Court. She seeks costs on an indemnity basis. 5 As earlier mentioned, the plaintiff contends that since the arbitration there has been a change in her circumstances. It is claimed that the plaintiff has a much larger economic loss claim than was earlier envisaged. 6 Prior to the filing of the summons, the attitude of the defendant was that it did not consent to unlimited jurisdiction in the District Court and did not consent to a transfer to this Court. Since 2 June 2006, it has taken the stance that it will consent to unlimited jurisdiction in the District Court. The change of stance followed the providing of material concerning economic loss by the plaintiff. Despite this, the plaintiff has pressed on with the application. 7 The Court has a discretionary power to transfer proceedings (s140 of the Civil Procedure Act 2005 (NSW)). The discretionary power is only exercisable when certain threshold requirements have been satisfied. Otherwise, this Court is prohibited from making a transfer order. 8 The relevant provision is sub-section 3, which is as follows:- "(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied: (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." 9 The summons has made slow progress towards a hearing. It had been erroneously listed for hearing on 29 August 2006. A contested hearing ultimately took place on 4 December 2006. A large amount of material has been placed before the Court. Both sides have adduced evidence. 10 Liability is admitted. The plaintiff has put before the Court material which is intended to demonstrate that the amount to be awarded to the plaintiff is likely to be more than one million dollars. The defendant does not concede that this is so. In the circumstances of this case, this issue does not have to be decided. 11 If it be assumed that this first threshold requirement has been satisfied, the plaintiff still must demonstrate that the case either involves complex legal issues or issues of general public importance. If she is able to demonstrate either of these two matters, she must then satisfy the Court that it is an appropriate case in which the discretionary power should be exercised in her favour. 12 I have listened carefully to the many arguments advanced by counsel. However, I am not satisfied that this case either involves complex legal issues or issues of general public importance. Indeed, it was not submitted that this case had either of those features. Rather, emphasis was placed on what was said to have happened before Judge Hughes. 13 For present purposes, I shall assume that what has been said concerning Judge Hughes is correct. However, in my view, it does not provide a basis for the order that is sought. The District Court has numerous judges with the capacity and experience to hear the plaintiff's case. An unhappy experience with one judge of that court does not mean that there are not other judges on its bench who will fairly hear her case. The defendant has informed the Court that it will support an application that the plaintiff's case be heard by another judge of that Court. 14 Even assuming that the threshold requirements have been satisfied, I am not satisfied that this is a case in which the discretionary power should be exercised in favour of the plaintiff. I will refer to some of the relevant circumstances. The reference to these matters is not intended to be exhaustive. 15 The proceedings have been in the District Court for some years. It would seem that the matter is now close to a state of readiness for hearing. It could expect to get an early hearing date in that jurisdiction (which is not the case in this Court). 16 There has been considerable delay in the making of and the conduct of this application. Although material is offered to explain the delay, I do not consider that it has been fully explained. 17 The defendant consents to unlimited jurisdiction. There is no utility in the making of an order. The District Court is an appropriate forum to hear the plaintiff's case. 18 It may be added that it has many more judges to hear her case than this Court (including many more who regularly hear personal injury claims). As I understand the position, it now has a declining civil jurisdiction (particularly so in respect of personal injury claims). Such is not the case in this very busy Court. If a transfer order was made, because of the pressure of business, she could expect to face considerable delay before her case was reached in the list. 19 The application fails. The summons is dismissed. Because of the particular circumstances of this case, I consider that justice is best served if no order is made as to costs.