Scott v Telstra Corporation Ltd [2018] NSWSC 309

Supreme Court New South Wales

Medium Neutral Citation: Scott v Telstra Corporation Ltd [2018] NSWSC 309 Hearing dates: 12 March 2018 Date of orders: 12 March 2018 Decision date: 12 March 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The Plaintiff's application is dismissed.

(2) I confirm the hearing date of 9 April 2018.

(3) The matter is listed for directions before the Registrar on Wednesday 14 March 2018 at 9 am.

(4) The Plaintiff is to pay the Defendant's costs of the application. Catchwords: CIVIL PROCEDURE – application to transfer proceedings to District Court – where proceedings commenced in District Court and were previously transferred to Supreme Court – where granting application would require vacation of hearing date in April 2018 Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 146 Uniform Civil Procedure Rules r 42.34 Category: Procedural and other rulings Parties: Nathann Bradleigh Scott (Plaintiff) Telstra Corporation Ltd (Defendant) Representation: Counsel: E G Romaniuk SC (Plaintiff) L P McFee (Defendant)

Solicitors: LHD Lawyers (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2011/228283

ex tempore Judgment 1. The Plaintiff in these proceedings has filed a notice of motion on 23 February 2018 seeking orders that the hearing date fixed to commence in this court on 9 April 2018 be vacated, and an order transferring the proceedings to the District Court pursuant to s 146 of the Civil Procedure Act 2005 (NSW). 2. The application has come before me as Duty Judge today, and given the pressing the hearing date (9 April 2018) and the need for clarity about what is happening with the matter, I am delivering this judgment ex tempore. 3. The Defendant has also filed a notice of motion on 6 March 2018 seeking dismissal of the proceedings and a personal costs order against the solicitor on the record for the Plaintiff. However, Ms McFee, who appears on behalf of the Defendant, took care to point out that application only becomes activated if I form the view that the proceedings should be transferred to the District Court, and the hearing date vacated. Accordingly, I leave that application to one side and make no orders in relation to it. 4. As part of the Plaintiff's notice of motion, two affidavits of Matthew Leo Berenger have been relied upon. 5. The relevant provision, section 146 of the Civil Procedure Act, provides in sub-rule (1) that if the Supreme Court is satisfied in relation to proceedings before it, that the proceedings could properly have been commenced in the District Court (or the Local Court), the Supreme Court may order that the proceedings, including any cross-claims, be transferred to the District Court (or to the Local Court as the case requires). 6. Section 146(4) provides that 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 that the amount to be awarded to the Plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or that there is other sufficient reason for hearing the proceedings in the Supreme Court. The other part of s 146(4) applies to motor accident or workplace injury claims, and thus does not apply to these proceedings. 7. My attention was also drawn to s 146(5), which notes that s 146 extends to proceedings that have been transferred to the Supreme Court or the District Court pursuant to a previous transfer order under Division 1.