Supreme Court New South Wales Medium Neutral Citation: Dimoski v The Workers Compensation Nominal Insurer [2017] NSWSC 1195 Hearing dates: 1 September 2017 Date of orders: 01 September 2017 Decision date: 01 September 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Proceedings No. 2015/321436 in the District Court be transferred to this Court; (2) Pleadings in that matter stand as pleadings in this Court. (3) The parties' costs of that application are costs in the cause in this Court; (4) Proceedings No. 2016/121567 in the District Court be transferred to this Court; (5) Pleadings in that matter stand as pleadings in this Court; (6) The parties' costs, if any, of that matter are costs in the cause in this Court; (7) List the matter for directions before the Common Law Case Manager at 9 am on Friday, 8 September 2017. Catchwords: CIVIL PROCEDURE – Jurisdiction – Transfer to and from other courts – District Court – Personal injury case – Whether damages could exceed the statutory limit of the District Court – Held that matter to be transferred Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45 Pelka v Woolworths Ltd [2016] NSWSC 1312 Sophron v Nominal Defendant (1957) 96 CLR 469 Category: Procedural and other rulings Parties: Todor Dimoski (Plaintiff) The Workers Compensation Nominal Insurer (Defendant) Representation: Counsel: S Moffet (Plaintiff) D Benson (Defendant) Solicitors: File Number(s): 2017/121567 EX TEMPORE Judgment (REVISED) 1. By summons filed on 1 August 2017, the plaintiff seeks an order under s 140 Civil Procedure Act 2005 (NSW) that the proceedings currently pending in the District Court be transferred to this Court. 2. The proceedings are for damages for personal injury arising out of an industrial accident. The first defendant is the plaintiff's employer and his claim against that party is restricted to work injury damages under Part 5 Workers Compensation Act 1987 (NSW). The District Court has unlimited jurisdiction in that matter. The claim against the second defendant is for damages assessed in accordance with Pt 2 Civil Liability Act 2002 (NSW). The second defendant is the occupier of, and the entrepreneur in charge of the operations at, the premises where the plaintiff was employed. 3. The case in the District Court was commenced as a claim for work injury damages only on 23 October 2015. The defendant filed a cross-claim against the second defendant on 15 December 2015 and, after obtaining advice from counsel, the plaintiff joined the second defendant on 16 February 2016. It is apparent that there will be an issue at trial about whether the plaintiff's action against the second defendant has been commenced within the relevant limitation period. 4. The basis upon which the order for transfer is sought is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court or, in the alternative, that there is other sufficient reason for hearing the proceedings in the Supreme Court. The defendant objects to an extension of the District Court's jurisdiction and also opposes the transfer. 5. Essentially the defendant argues that on the basis of the evidence presented in support of the application, I could not be satisfied, even at the impressionistic and summary level appropriate to answering the question, that the amount to be awarded is likely to exceed $750,000. The defendant, in the written submissions of Mr Benson of learned Counsel, suggests that at its highest the case could not be assessed as being in excess of a figure of about $672,000. I stress that the second defendant argues not that the case should be assessed at that level after trial, but that that is the best the plaintiff could possibly do. I did wryly comment to Mr Benson that if a personal injury case could possibly be worth $672,000, then it may also possibly be worth $750,000. 6. In any event, the real issue about whether the damages have been shown to be likely to exceed the statutory limit has centred, at the practical leve,l before me around the plaintiff's claim for what used to be called Griffiths v Kerkemeyer damages. The plaintiff's schedule, supported by the evidence annexed to the affidavit of his solicitor, Chris Nikolovski, sets out calculations on the basis of which the case could possibly be worth $1.7 million. To get to that figure, you have to make an allowance of about $820,000 for Griffiths v Kerkemeyer damages. One can see, however, that even if nothing was allowed at all, or any comparatively modest figures were allowed, for that head, on one view of it, and supported by the evidence, the case could exceed the figure of $750,000, on the plaintiff's side of the argument. 7. As I understand section 140 it is necesaary for me to assume that the plaintiff will win on liability. That is to say, the section proceeds on the statutory assumption that the plaintiff will be successful; this is what I derive from the phrase "if successful" in s 140(3)(a)(i). Many cases have emphasised that the task of the Court is impressionistic. Generally the procedure is of a summary nature where the question falls to be answered on the basis of limited, untested evidence in advance of a trial. It is not expected that the Court will engage in a detailed examination of the material for and against the plaintiff. My own view about the matter is that a decision can be made that the damages awarded are likely to exceed the jurisdictional limit of the District Court if it appears, on a summary consideration of the material put forward, that there is evidence available to be led at the trial which, if accepted, would justify an award of damages in excess of $750,000. 8. I appreciate moreover that the question has to be answered by application of the overriding purpose expressed in s 56 Civil Procedure Act 2005 (NSW), that is, that the Court's procedural powers have to be exercised in the way which is best calculated to give effect to the purpose of the just, quick and cheap resolution of the proceedings, or the real issues between the parties. I also accept that that concept is to be understood by reference to the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 9. I have been referred to a number of decisions of my colleagues in the Common Law Division and as helpful I have found the consideration of those matters, and although the decision may not be purely discretionary, it really depends, as I have emphasised. upon the impression formed by the judge exercising the power. It is well to bear in mind, as my colleague Button J remarked in Pelka v Woolworths Ltd [2016] NSWSC 1312, that the application of the overriding purpose is not to be used as a stick to beat one party or another with. Rather, genuinely, the Court is to try and achieve that purpose, including the just, not only the quick and cheap resolution of the case. 10. Now on one view of it, the just, quick and cheap resolution of these proceedings would be best had in the District Court exercising unlimited jurisdiction; that would avoid wasted costs, and the proceedings are well advanced in that Court. Moving it to this Court will result in an element of delay. Moreover, the judges of the District Court are very experienced in the resolution of personal injury claims and exercise unlimited jurisdiction in work damages cases and in motor accident cases. However, the defendant has the right not to consent to the jurisdiction and the defendant, in this case, has made it clear from the outset that it would not consent to jurisdiction. 11. It seems to me that if I am satisfied by application of the test I have enunciated that there is a real chance that the plaintiff's damages could be assessed in excess of $750,000, and that the matter should be removed to this Court because by that means, justice between the parties can be given effect to. 12. It seems to me, I must say, unlikely that the view of the occupational therapist would prevail in this case. It seems like a very large claim for care in respect of a 62-year old male with an admittedly bad back. However, he did tell the neurosurgeon, Doctor Davies, that he could do very little around the house these days. The problem for the plaintiff, if there is one, may be that he did not seem to do much in the past other than traditional yard-type work, and it is necessary for the purpose of s 15 Civil Liability Act 2002 (NSW) that the injury be the sole cause of the need for the replacement of the services that he previously rendered to himself. However, accepting perhaps that the occupational therapist presents the high watermark, my impression, looking at the matter as a whole, is that it is possible – when I say possible, I mean realistically possible – that the plaintiff, when one looks at the nature of his injuries, could obtain damages in excess of $750,000. 13. He suffered a discal injury to his back which may have been in the nature of the aggravation of pre-existing spondylosis, given his age. He has undergone surgery which was unsuccessful, and indeed it seems there may have been, on one view of the evidence, additional clinical signs following surgery. Although in theory he is fit for light work, it does not seem very realistic, even in the 21st century, that a 62-year old who has only worked as a labourer and who has a demonstrable bad back will get back into the workforce easily, or that light duties are likely to be available for a man with his qualifications. 14. For these reasons, I think that there is evidence available to be led at the hearing, which if accepted by the judge, would justify an award in excess of $750,000 in damages. 15. The thing that has concerned me most about the case is the absence of a real explanation for the delay in bringing the application. It was filed at the heel of the hunt. The case had already been listed for hearing in the District Court and an application to adjourn the case so this application could go forward was refused by the District Court judge. My colleague Wilson J, however, granted a stay and the matter was able to proceed. Given those circumstances, there is no pending hearing date in the District Court which may, in some circumstances, be a powerful factor justifying rejection of a transfer application in the application of the just, quick and cheap purpose of the Civil Procedure Act. 16. On the other hand, the explanation for the delay is quite thin, but I infer from what is in Mr Nikolovski's affidavits that have been read in support of the applications that he rather hoped the matter might settle, and was only moved to make an application when he received advice from Mr Moffet of Counsel. It was only then he realised the potential of the case. That may not be entirely satisfactory from the lawyer's point of view, but there was no reason why a misjudgement on the solicitor's part should be visited upon the plaintiff. (Sophron v Nominal Defendant (1957) 96 CLR 469.) In all the circumstances, I accept that is the explanation, and I accept that putting someone in the shoes of Mr Dimoski, there is no reason to suppose that he has not done everything asked of him by his solicitor to prosecute his claim. ORDERS 1. I order that: 1. Proceedings No. 2015/321436 in the District Court be transferred to this Court; 2. Pleadings in that matter stand as pleadings in this Court. 3. The parties' costs of that application are costs in the cause in this Court; 4. Proceedings No. 2016/121567 in the District Court be transferred to this Court; 5. Pleadings in that matter stand as pleadings in this Court; 6. The parties' costs, if any, of that application are costs in the cause in this Court; 7. List the matter for directions before the Common Law Case Manager at 9 am on Friday, 8 September 2017. ********** 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. Decision last updated: 06 September 2017