Samut v Fitness First Australia Pty Ltd & Anor [2007] NSWSC 681

New South Wales Supreme Court

CITATION : Samut v Fitness First Australia Pty Ltd & Anor [2007] NSWSC 681

HEARING DATE(S) : 22/06/2007; 28/06/2007

JUDGMENT DATE : 3 July 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : 1.The District Court proceedings having case number 4960/2005 are transferred to this Court; 2.The costs of the Summons are reserved to the trial Judge; 3.The parties have liberty to apply to the Registrar; 4.Exhibit 1 may be returned to the plaintiff

CATCHWORDS : District Court transfer - threshold requirement - serious disability and range of possibilities concerning liability and quantum - discretionary considerations

LEGISLATION CITED : Civil Procedure Act 2005 (NSW)

Raizal Izaac Samut PARTIES : Fitness First Australia Pty Ltd South Western Sydney Area Health Service t/as Campbelltown Hospital

FILE NUMBER(S) : SC 12779/07

Mr M. Aldridge SC / Mr P. Khandar (Pl) COUNSEL : Mr M. S. White (1st Def) Mr R. J. A. Sergi (2nd Def)

Bryden's Law Office (Pl) SOLICITORS : Lander & Rogers (1st Def) General Insurance Law Department (2nd Def)

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

ASSOCIATE JUSTICE MALPASS

3 JULY 2007

12779/07 Raizal Izaac Samut v Fitness First Australia Pty Ltd & Anor

JUDGMENT 1 HIS HONOUR: On or about 18 November 2002, the plaintiff was exercising at a gymnasium and/or fitness centre at Campbelltown (the fitness centre). He was then about 23 years of age. He claims to have suffered injury both as a result of the exercising and a massage he was given at the fitness centre. He was taken to hospital (firstly to Campbelltown Hospital and later to Westmead Hospital). He claims to have suffered further injury because of delay (he should have been taken immediately to a spinal unit). 2 The first defendant is sued as the party having the conduct of the business at the fitness centre. The second defendant is sued as the party having the conduct of Campbelltown Hospital. 3 The plaintiff commenced proceedings in the District Court on 16 November 2005. Damages were claimed as against both defendants in respect of personal injury. The solicitors then acting for him were Bryan Gorman & Co (the first solicitors). The first solicitors continued to act until late 2006, when his present solicitors (Brydens Law Office) took over the conduct of the proceedings. Since then, Mr Hagipantelis of Brydens has had the day-to-day conduct of the matter. 4 On 4 June 2007, the plaintiff filed a Summons in this Court. It seeks, inter alia, an order that the proceedings be transferred to this Court. The order is sought pursuant to s140 of the Civil Procedure Act 2005 (NSW).