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). 5 The section confers a discretionary power upon the Court. In the circumstances of this case, the discretion may not be exercised unless the Court is satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court ($750,000). The provisions may be regarded as imposing a threshold requirement to the exercise of the power. 6 The Summons was referred to me for hearing on 22 June 2007 (it then had an estimate of being under one hour in hearing time). The actual hearing time came to well exceed that estimate. It was stood over part heard until 28 June 2007 to enable, inter alia, the plaintiff to put on further evidence. 7 Both defendants resist the application for transfer. The first defendant does not consent to the District Court having extended jurisdiction. On 21 June 2007, the second defendant gave such consent. 8 The plaintiff is now seriously disabled. There are real issues as to the cause or causes of the present disability. The possibilities are the conduct of the first defendant and/or the second defendant and/or other causes. What may be the likely result is speculative. 9 There is a plethora of material before the Court (including a schedule of potential damages which puts the claim in the order of many millions of dollars). Competing submissions have been made as to how this material should be viewed. On 22 June 2007, after considering this material, I expressed the view that if the plaintiff was successful on at least one of the possible outcomes, it seemed to me to be likely that the judgment may exceed the jurisdictional limit of the District Court. Despite reaching that view, I was not then persuaded that I should make the order sought. 10 Because of other material before the Court, I was concerned that there may be discretionary considerations that should be taken into account (inter alia, the question of the utility in transferring the proceedings to this Court). It was this concern that led me to give the plaintiff the opportunity to put on further material. 11 The proceedings have had an appalling history in the District Court. Largely, the detail may be found in an affidavit affirmed by Georgina D'arcy Mullighan on 21 June 2007. The principal problem was default in prosecution of the proceedings. This brought about an application for dismissal for want of prosecution. The application was heard by Garling DCJ. On 27 April 2007, His Honour made the following orders :- "(a) The plaintiff is to complete service of all evidence upon which it intend to rely, including medical and expert evidence, by 18 May 2007. (b) The plaintiff will not be permitted, except in the most exceptional circumstances, to rely on evidence served after 18 May 2007. (c) The defendants are to serve all evidence upon which they intend to rely by 17 August 2007. (d) The plaintiff is to serve any evidence in reply by 31 August 2007. (e) The matter has been fixed for hearing on 18 September 2007 with an estimate of three days and will not be adjourned except in the most exceptional of circumstances. (f) Leave is granted to all parties to approach the list judge within seven days to alter the hearing date should the need arise." 12 Subsequent to 22 June 2007, Mr Hagipantelis has filed and served a further affidavit (sworn on 26 June 2007). The present position is that the plaintiff has obtained additional material, which he intends to seek to adduce in evidence at any hearing of the proceedings. As things presently stand, this material cannot be adduced by reason of the orders made by Garling DCJ. In addition to this material, it may be that a further report will be sought from an appropriately qualified gymnasium instructor. Indeed, the gathering of further fresh material has not been ruled out. 13 Whatever be the result of this application, it will be necessary for a prompt application to be made to vary or otherwise address what has been done by Garling DCJ. 14 The blame for the past default has been directed to the first solicitors. Since the matter has been in the hands of Mr Hagipantelis, there has been a considerable improvement in the progress of the matter. It appears to be now close to a state of readiness for hearing. In his most recent affidavit, Mr Hagipantelis has sworn to undertake to continue to prosecute the plaintiff's claim with due diligence. 15 If the proceedings are transferred to this Court, the parties will lose the hearing date had for 18 September 2007. When that date was allocated, an estimate of three days hearing had been provided to the Court. If the matter is transferred to this Court, it presently appears that hearing dates may be available in or about October or November this year. 16 As earlier indicated, I have satisfied myself as to the threshold requirement. However, because of the discretionary considerations, I have waxed and waned on the question of whether or not the discretionary power should be exercised in favour of the plaintiff. In considering the discretionary exercise, I also looked at the question of whether the proceedings could still continue in the District Court despite the view had as to the threshold requirement. 17 In the ultimate, I have come to the view that the plaintiff has discharged the onus borne by him and that I should order the proceedings to be transferred to this Court pursuant to s140. 18 The question of costs is a contentious one. In my view, the dictates of justice are best served if the question of costs is reserved to the trial Judge. 19 As there will be a need for further directions and perhaps case management, I propose to give the parties liberty to apply to the Registrar. 20 The orders I make are as follows:- 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. ********** 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.