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. Background 1. I need to briefly outline the history of these proceedings, because it is relevant to my determination. The proceedings arise out of the Plaintiff (now approximately fifty years of age and was about forty at the time of the injury in 2008) tripping over cabling and sustaining, it is said, an injury to his back and shoulders. 2. The Statement of Claim filed on 20 July 2011 was filed in the District Court. That Statement of Claim was supported a couple of months later by a Statement of Particulars, which set out, amongst other things, a series of potentially serious disabilities, including restriction on ability to earn income and work, the need for domestic assistance, and the need for ongoing treatment. 3. The Defendant filed a Defence in which it denied liability, raising contributory negligence, and refusing to consent to extend the jurisdiction of the District Court. The Defence also denied causation and raised in careful detail that there were underlying degenerative conditions suffered by the Plaintiff. 4. On 16 March 2015 an Amended Statement of Particulars was filed. That document provided significantly more detail and calculations of a number of heads of damage which resulted in an overall claim for damages of over $1.7 million. Both past and future loss of earnings were claimed. A significant claim for domestic assistance was set out, as well as a claim for ongoing treatment expenses. 5. Shortly after this, application was made for transfer of the proceedings to the Supreme Court, and according to the affidavit filed by the solicitor with conduct of the proceedings on behalf of the Defendant, this transfer occurred with the consent of the Defendant. 6. On 23 May 2016 at a Directions Hearing the case was listed for hearing on 27 February 2017. Later in the year on 22 October 2016 at a directions hearing, amongst other things, the Plaintiff raised the possibility that the matter would be transferred to the District Court because of a concern that Uniform Civil Procedure Rules 2005 r 42.34 may have a negative costs impact on the Plaintiff's claim in that his entitlement to damages may run foul of that rule. Subsequent to this, in November 2016, correspondence from the Plaintiff, I am informed from the affidavit of the Defendant's solicitor, confirmed that the matter was to stay in the Supreme Court. 7. On 29 November 2016 the hearing date was vacated and, without dwelling on the reasons, it appears that it was because the Plaintiff was not ready. There was an order that the Plaintiff pay the Defendant's costs of the directions hearing and costs thrown away by vacation of the hearing date. 8. The matter was referred back to the Registrar for further timetabling and management. 9. There were various orders made on 9 December 2016. On 15 June 2017, at a directions hearing, the matter was listed for hearing on 9 April 2018. Rule 42.34 and its implications 1. Senior Counsel appearing for the Plaintiff today, Mr Romaniuk, raised a concern that r 42.34 may have an unjust effect on the Plaintiff's claim given more recent evidentiary developments, in particular those that are set out in the joint report of Professor Noel Dan and Associate Professor John Yeo. That joint report addresses a number of questions directed at the issue of aggravation of the Plaintiff's underlying condition and its effects, as well as the implications of these matters on the Plaintiff's capacity to work and perform household tasks. 2. Rule 42.34 provides that costs limitations apply if in proceedings in the Supreme Court (other than defamation proceedings) a Plaintiff has obtained a judgment against a Defendant in an amount less than $500,000 (and the Plaintiff would, apart from this rule, be entitled to an order for costs against the Defendant or Defendants). 3. The problematic part of the rule is sub-rule (2) which provides as follows: "(2) An order for costs may be made, but would not ordinarily be made unless the Supreme Court is satisfied that: (a) for proceedings that could have been commenced in the District Court – the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted …" 1. Mr Romaniuk expresses concern that given the recent evidentiary developments, and in particular the joint report of the conclave of Associate Professor Yeo and Professor Dan there is a risk that his client will not obtain a judgment for damages that exceed $500,000. Sections 56 and 146 of the Civil Procedure Act and their implications 1. Ms McFee, appearing for the Defendant, argues that s 146 does not provide a basis for transfer of the proceedings back to the District Court because given the amount claimed, and in particular the amount set out in the most recent Amended Statement of Particulars and the fact that it exceeds $1.7 million, these proceedings "could not properly have been commenced in the District Court". Whilst I am not entirely confident about the correctness of that submission, I observe in this case that the proceedings were in fact commenced in the District Court, but were clearly thought by both parties to be proceedings that ought not continue in that Court once the evidence began to be collected and the extent of the potential damages was expressed. 2. Another matter I need to take into account is s 56 of the Civil Procedure Act 2005, which requires that I consider, as the overriding purpose of the Act and the Rules, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. Decision 1. I am required by s 56(2) to give effect to the overriding purpose when I exercise any power given by this Act or by the Rules of the court, or when I interpret any provision of this Act or any rule. Accordingly, it seems to me that the primacy of retaining the fixed hearing date is a matter I must take into account. 2. It is clear to me that the parties have now joined issue in detail and the Plaintiff ought to retain the benefit of the hearing date that he has, which has been secured after extensive case management and a number of adjournments. A number of the Court's processes have been invoked to assist in defining the issues and the matter is, I have been informed by Mr Romaniuk, ready to proceed on 9 April 2018. 3. I am also of the view that it is appropriate for the proceedings to remain in this Court, because the matter has a potential for a significant award of damages. It is not for me to determine all the issues raised by the various reports and the evidence to be offered to the trial court to establish liability and damages for this Plaintiff. 4. There are however claims that the injury has significantly affected all aspects of the Plaintiff's life. If all evidence in favour of the Plaintiff is accepted, there is some prospect of an award of damages that well exceeds the jurisdictional limit of the District Court. 5. I invited counsel for the Defendant to obtain instructions as to whether the Defendant would be prepared to place on the record that it would not seek to invoke r 42.34 against the Plaintiff should the Plaintiff recover damages of less than $500,000. Ms McFee was unable to make contact with the partner with conduct of the matter or the claims manager who has conduct of the claim on behalf of Telstra. This was because a) there was only a very short window of opportunity of an hour to do so and, b) it is a public holiday today in Melbourne and the claims manager works in Melbourne. I make no criticism that there was no contact made with those individuals, and nor do I criticise the Defendant for not to date stating a preparedness to waive its entitlement to seek the full effect of r 42.34. 6. However, it seems to me that in a case where proceedings were in fact commenced in the District Court and were removed to this Court by consent and today counsel for the Defendant has argued with care and precision as to the reasons why the matter ought to remain in this Court, it is most unlikely that a judge of this Court would use the negative potential effects of r 42.34 to refuse to make a costs order in favour of the Plaintiff should he be unable to obtain damages of $500,000 or more. 7. I take on board the oral submissions made by Mr Romaniuk that it would be a substantial injustice if that happened. I note that I am required, in considering this application, to assume that judges of this Court will apply the rules of this Court in a way that does not lead to substantial injustice to any party. It is clear that r 42.34 is directed at matters that could (and should) have been commenced in the District Court but were not; not to matters that were in fact commenced in the District Court and were transferred to this Court by consent as considered by the parties to be more suitable to this Court's jurisdiction. 8. In all the circumstances, and in particular the fact that the Plaintiff has a hearing date on 9 April 2018 for an accident that occurred almost ten years ago, I am of the view that the application by the Plaintiff should be dismissed. Costs 1. The Plaintiff brought this application very late in the scheme of things, given that the parties received the joint report of Professor Dana and Associate Professor Yeo on 10 November 2017. I have dismissed the application and not vacated the hearing date, nor transferred the matter to the District Court. Whilst I appreciate that there was a concern regarding the potential for a negative costs order pursuant to r 42.34, I am of the view that the Defendant's presence today to defend the application, to make appropriate submissions and to provide a full background into the history of the matter, has been an important part of my consideration and deliberations. 2. Accordingly, I am of the view that the Plaintiff should pay the Defendant's costs of the application. Orders 1. I make the following orders: 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. ********** Amendments 26 March 2018 - Marked Ex Tempore Judgment 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: 26 March 2018