Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395

Supreme Court New South Wales

Medium Neutral Citation: Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395 Hearing dates: 27 September 2016 Date of orders: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order that the proceedings in the District Court of New South Wales be transferred under s 140(3)(b)(i) of the Civil Procedure Act 2005 (NSW).

(2) Order the plaintiff to pay the defendants' cost of the application for transfer to this Court. Catchwords: PRACTICE AND PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – if plaintiff successful amount awarded likely to exceed jurisdictional limit of District Court – order made Legislation Cited: Civil Procedure Act 2005 (NSW), s 140 Category: Procedural and other rulings Parties: Mark Thomas (Plaintiff) Laundy (Exhibition) Pty Ltd (Defendant) Michael John Cutajar (Second Defendant) Mark Malloy (Third Defendant) Representation: Counsel: R Chia (Plaintiff) M Wilson (First and Third Defendants) T Davy (Second Defendant)

Solicitors Brydens Lawyers Pty Limited (Plaintiff) HBA Legal (First and Third Defendants) Henry Davis York (Second Defendant) File Number(s): 2016/277518

Judgment – EX TEMPORE 1. The plaintiff, Mr Thomas, filed a summons on 15 September 2016, seeking that District Court proceedings commenced on his behalf in 2014 be transferred to this Court. Mr Wilson, who appears on behalf of the first and third defendants, and Ms Davy, who appears for the second defendant, neither consent nor oppose the transfer. 2. Section 140 of the Civil Procedure Act 2005 (NSW) relevantly provides: Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. (2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District Court. (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: . . . (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, . . . 1. The basis of the plaintiff's application is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court: s 140(3)(b)(i) of the Civil Procedure Act. 2. The plaintiff claims damages against the owner and licensee of the North Wollongong Hotel (the first and third defendants) and a person employed in connection with the hotel (the second defendant). It is alleged by the plaintiff that he was assaulted by the second defendant and suffered serious injury as a result. He claims to have suffered a substantial loss of earning capacity and alleges that he has required, and will require, domestic care to assist him in the activities of daily living. 3. Mr Chia, who appears on behalf of the plaintiff, relies on material which, if accepted by the Court as to liability and damages, could result in an award for damages which is in excess of the jurisdictional limit of the District Court being $750,000. 4. I note that the defendants rely on material which suggests that, even if the plaintiff is successful on liability, the damages which will be awarded will be substantially less than those claimed and will fall well within the jurisdictional limit of the District Court. 5. In my view, it is necessary to envisage, for the purposes of s 140(3)(b)(i), that the plaintiff will be successful, not only on liability, but that his claim for substantial damages will also be successful and that there is material, which will, if accepted, warrant an award of damages that is likely to be in excess of the jurisdictional limit of the District Court. I am satisfied of these matters. Accordingly, I am not prohibited from transferring the proceedings to this Court. 6. In all the circumstances, I consider it to be appropriate to order that the District Court proceedings referred to be transferred to this Court pursuant to s 140 of the Civil Procedure Act.