Turcin v Derryna Pty Ltd [2001] ACTSC 74 (3 August 2001)

Last Updated: 11 June 2002

Branko Turcin v Derryna Pty Ltd [2001] ACTSC 74 (3 August 2001)

CATCHWORDS

PRACTICE AND PROCEEDURE - Transfer of personal injuries matter from the ACT Magistrates Court to the ACT Supreme Court - Matter part heard in ACT Magistrates Court - Subsequent medical procedure indicates different prognosis.

Civil Procedure ACT

Magistrates Court (Civil Jurisdiction) Act 1982

Braithwaite v Philpot, unreported, Connolly M 12 December 1987, see Civil Procedure ACT para [52,730.10]

Kadic v Thiess Bros Pty Ltd [1967] 2 NSWLR 257

No. SC 484 of 2001

Coram: Master T Connolly

Supreme Court of the ACT

Date: 3 August 2001

1. This is an application pursuant to s 383 of the Magistrates Court (Civil Jurisdiction) Act 1982 to remove personal injuries proceeding from the Magistrates Court to this Court. The application was supported by an affidavit, in the proper form, from the plaintiff's solicitor, which indicated that the plaintiff had undergone an operative procedure on 1 June 2001 at the hands of his orthopaedic surgeon, and that in the solicitor's opinion this will significantly impact on the plaintiff's ability to continue with his pre accident occupation as a plasterboard subcontractor. In the solicitor's opinion his damages would exceed the Magistrates Court jurisdictional threshold of $50,000, and accordingly transfer was sought.

2. An application to remove a matter on these grounds is normally a straightforward application, and in many cases a defendant takes the attitude that it neither consents nor opposes an application. In this matter the application was opposed, on the basis that the matter was part heard in the Magistrates Court. The matter raises what I consider to be issues of importance, and although I made an order that the matter be transferred, I indicated that I would publish my reasons in due course, which I now do.

3. It is stated in Civil Procedure ACT, correctly in my view, that: "It will be very rare for part heard proceedings to be removed into the Supreme Court" (para [52,730.1]). In Kadic v Thiess Bros Pty Ltd [1967] 2 NSWLR 257 Jacobs J.A., speaking of the equivalent discretion to remove a matter from the District Court to the Supreme Court when a matter was part heard, said that such an order would be granted in:

"...a rare case indeed. The reason is obvious. A plaintiff cannot be allowed to wait and see what the reaction of the District Court judge is to the case which he is making and then decide whether he will apply for a hearing before the superior tribunal."

4. Mr Pilkinton, for the defendant, submitted that this was precisely what the plaintiff was doing, after what Mr Pilkinton said was a trial before the learned Magistrate where the plaintiff's case was substantially weakened on cross examination.

5. It was undoubtedly a factor in the decision of Kadic that there was no medical evidence to show any change in circumstances between the part heard trial in the District Court and the application for transfer. In the present matter, as Mr Pappas stressed, the plaintiff has undergone an operative procedure of some significance to his knee, and the affidavit asserts that the prognosis is poor. It seems to me that this factor does operate to elevate this case to one of the rare cases where transfer of a part heard matter is appropriate in the interests of justice.

6. The power to transfer is discretionary. Any application that was perceived to be an attempt to gain a forensic advantage by starting afresh in the Supreme Court after a trial that had not gone well for a plaintiff before a Magistrate would be unlikely to succeed. While in Kadic no additional medical evidence was provided, I would observe that the mere assertion that a fresh opinion has been obtained that contains a poorer prognosis may well be insufficient. But in this case the evidence is that the plaintiff has undergone a substantial operative procedure to his knee after the part heard proceeding.

7. The jurisdictional limit of the Magistrates Court could in such circumstances cause a substantial injustice. If the Magistrate, on the resumed hearing, formed the view on all of the evidence, including the evidence flowing from the operative procedure performed in June, that the plaintiff had established that his accident related injury prevented him, wholly or substantially, from returning to his pre accident employment, he could only award the maximum damages of $50,000 even though the evidence may justify an award of damages in a far greater sum. In such circumstances the plaintiff would lose forever the opportunity to receive just compensation for what he asserts is his accident related disability.

8. In the face of this medical evidence, it seems to me that it is appropriate to order the transfer, and I so ordered. By removing the matter to this Court, the plaintiff has the opportunity to present his case in support of the proposition that the accident related injury has lead to the recent operation, and to receive an appropriate award of damages. The defendant retains the opportunity to put the plaintiff to his proof, and it was conceded by all parties that it will be necessary for the plaintiff to, in effect, begin the case anew and give his evidence in chief and face cross examination. A transcript of the earlier proceedings before the Magistrate will no doubt be obtained, and any inconsistencies subjected to appropriate forensic testing. If at the end of the day the matter results in an award of damages below the Magistrates Court threshold, an appropriate costs order can be made. Both plaintiff and defendant will therefore have the opportunity to obtain justice in this court, but if the matter had to proceed before the Magistrate, the plaintiff, if fully successful, would potentially be denied the opportunity to obtain justice by being limited to an award of damages of $50,000 only.

9. Although the normal order on a transfer is that costs be reserved (for the reasons set out in Braithwaite v Philpot, unreported, Connolly M 12 December 1987, see Civil Procedure ACT para [52,730.10]), in a case where the matter has been part heard, it seemed to me that it is more appropriate that the plaintiff, who is benefiting from what is a significant exercise of discretion in his favour by way of indulgence, pay the defendant's costs thrown away by reason of the transfer, including the costs of this application, and I so ordered.

10. The plaintiff will need to make appropriate amendments to his statement of particulars given the operation, which occurred in June, after the adjournment of the part heard hearing in February. I relisted the matter to my list on 7 September 2001 for any necessary directions in order to bring the matter on for trial.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 3 August 2001

Counsel for the Plaintiff: Mr Pappas

Solicitor for the Plaintiff: Howes & Kaye

Counsel for the Defendant: Mr Pilkinton

Solicitor for the Defendant: Phillips Fox

Date of hearing: 27 July 2001

Date of judgment: 3 August 2001