Sheedy v State Asphalt Services Pty Ltd [2015] NSWSC 1532

Supreme Court New South Wales

Medium Neutral Citation: Sheedy v State Asphalt Services Pty Ltd [2015] NSWSC 1532 Hearing dates: 18 October 2015 Decision date: 22 October 2015 Jurisdiction: Common Law Before: RS Hulme AJ Decision: (i) Order that Proceedings 2013/232657 in the District Court between John Sheedy as Plaintiff and State Asphalt Services Pty Ltd and J & E Excavations & Plant Hire Pty Limited as Defendants be transferred to this Court.

(ii) Otherwise the Summons herein is dismissed.

(iii) The Plaintiff is to pay the costs of the Defendants of and incidental to these proceedings, in the case of the Second Defendant as a submitting Defendant. Catchwords: Practice & Procedure - transfer from District Court to Supreme Court – re-transfer impossible and abuse of process Legislation Cited: Civil Procedure Act 2005 District Court Act 1973 Cases Cited: Ge v River Island Clothing Pty Ltd [2001] NSWSC 935 Category: Procedural and other rulings Parties: John Sheedy (Plaintiff) State Asphalt Services Pty Ltd (First Defendant) J & E Excavations & Plant Hire Pty Ltd (Second Defendant) Representation: P Mooney SC (Plaintiff) G Babe (First Defendant) Ms Busby (Second Defendant)

Masselos & Co (Plaintiff) Norton Rose Fulbright (First Defendant) Curwoods Lawyers (Second Defendant) File Number(s): 2015/288221 Publication restriction: No

Judgment 1. By Summons filed on 2 October 2015 the Plaintiff seeks orders: 1. An order pursuant to section 140(1) of the Civil Procedure Act 2005, that Case Number 2013/232657 be removed from the District Court of New South Wales at Sydney to the jurisdiction of this Honourable Court. 2. After giving effect to the orders of the Court as referred to in paragraph 2 an order that these proceedings be transferred from the Supreme Court to the District Court pursuant to section 146(1). 3. An order that the First Defendant pay the costs of this Application. 4. Such other orders as this Honourable Court deems fit. 1. So far as is relevant s 146 of the Civil Procedure Act 2005 provides: (1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires. (2) ... (3) In determining: (a) whether any proceedings could properly have been commenced in the lower court, or (b) whether any cross-claim could properly have been brought in the lower court, the higher court must have regard to the current limits of the lower court's jurisdiction as if they had been the limits of that jurisdiction when the proceedings were commenced, or the cross-claim brought, in the higher court. (4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied: (a) in the case of a motor accident claim or 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. (5) This section extends to proceedings that have been transferred to the Supreme Court or the District Court pursuant to a previous transfer order under Division 1. 1. Significant to the application is also s 51 of the District Court Act 1973. So far as is relevant that section provides:- (1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced. (2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies: (a) if a party to the action or cross-claim files a memorandum of consent in respect of the action or cross-claim, or (b) if no objection to the Court's jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences. (3) … (4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced. 1. It is agreed between the parties that at the time the Statement of Claim was filed there was no limit to the amount the District Court could award in the case of actions against employers but, at least so far as someone in the position of the First Defendant is concerned, the jurisdictional limit of that court was $750,000. 2. The District Court proceedings sought to be dealt with were commenced against the First Defendant on 31 July 2013. They arise out of an injury the Plaintiff suffered at premises owned by the First Defendant while the Plaintiff was employed by the Second Defendant. During the hearing before me, the District Court Statement of Claim was not tendered but after I inquired what the claim was, I was provided with a Statement of Particulars filed on 13 September 2013, which included as amounts claimed by the Plaintiff: Past economic loss $190,598.10 Future economic loss $293,230.05 Fox v Wood entitlement Past attendant care approximately $9,000.00 per annum Future attendant care approximately $12,000.00 per annum Future operations and radiology $25,000.00 Future OOP expenses $2,990.00 per annum