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  • Unreported Judgment

Sanders v Lowrey

 

[2006] QSC 262

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Applicant

ORIGINATING COURT:

DELIVERED ON:

31 July 2006

DELIVERED AT:

Cairns

HEARING DATE:

26 May 2006

JUDGE:

Jones J

ORDER:

1.That these proceedings (9/2006) be remitted to the District Court at Cairns.

2.That the plaintiff pay the second defendant’s costs of and incidental to the proceedings to be assessed on the standard basis, the operation of such order to be delayed for a period of 14 days from the date hereof to allow the plaintiffs, by written submission, to seek a different order.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – REMOVAL OF PROCEEDINGS FROM SUPREME COURT TO DISTRICT COURT – where plaintiff has begun an action for damages for personal injury in the Supreme Court - whether the court can be satisfied that such removal would not cause any unnecessary delay, or would involve issues of costs and law or otherwise prevent a fair trial such that the case ought to be tried in the Supreme Court

District Court Act 1967 (Qld) s 71, s 77(3)

Trout v Stocker, unreported, Cairns S55 of 2002, 26 March 2003

COUNSEL:

Mr G Crow for the respondent/plaintiff
Mr M Glen for the applicant/defendant

SOLICITORS:

P J Little & Associates for the plaintiff
Sciacca’s Lawyers for the defendants

[1] This is an application by the second defendant to remit the action to the District Court pursuant to s 77 of the District Court Act 1967.  The plaintiff contends that his potential damages fall to be assessed at a level higher than the present jurisdictional limit of that Court, namely $250,000.

[2] The plaintiff’s Statement of Claim states that he was injured on 6 September 2004 in a motor vehicle incident.  The second defendant has admitted liability for the plaintiff’s injuries.  The plaintiff was then 22 years old having being born on 30 June 1982.  He was a physical education teacher with apparently good prospects of continuing in that work. 

[3] He suffered an injury to his cervical spine which was described initially by Dr White as flexion/extension injury.  Later radiological examination (plain x-rays and MRI scan) did not reveal any bony or discal abnormalities.  However, his symptoms to some degree have persisted.  Dr White considers that his injuries may not yet have settled.

[4] Dr Dixon, orthopaedic surgeon, saw the plaintiff on 2 November 2005.  He diagnosed the plaintiff as suffering from a cervical injury with an impairment range of between 5-8%.  Dr Dixon expected that “his symptoms and signs would continue to settle, but even if they were not to, they do not have any basis of any organic condition”.[1]  Dr Dixon also opined that no further medical or surgical treatment was required and that the plaintiff will not develop any degenerative changes as a result of the incident.

[5] The plaintiff’s damages fall to be assessed in accordance with the Civil Liability Act 2003 and the Regulations made thereunder.  In the light of the medical reports to date the plaintiff’s injury at best would fall within Item 88 with a corresponding ISV of less than 10.  That raw assessment would attract an allowance of $11,000.  Even with an uplift of some permissible kind, the allowance for general damages is unlikely to exceed $15,000. 

[6] There is a suggestion in the plaintiff’s claim for loss and damage that he may not be able to continue in his present employment as a physical education teacher.  That claim is somewhat at odds with the statements which the plaintiff made to Dr Dixon and the fact that he has only had a short time off work as a result of the incident.  In the absence of any direct evidence that the plaintiff’s future employment capacity has been significantly compromised by this injury then it is clear that his range of damages will fall comfortably within the District Court limit.  That being so, it is to that Court that his case should be remitted unless there is other reason for it to remain in the Supreme Court. 

[7] Section 71 of the District Court Act provides that:-

“1.  If proceedings are pending in the Supreme Court that in the absence of a memorandum signed under s 72 –

(a) might have been brought to a District Court within its jurisdiction under this part; or

(b) 

a party to the proceeding  may at any time apply to the Supreme Court or a judge thereof for an order remitting the proceeding to the District Court...”

[8] Pursuant to s 77(3), the Supreme Court or a judge thereof may order that proceedings pending in the Supreme Court be remitted to a District Court -

“Unless it is shown to the satisfaction of the Supreme Court -

(a) that unnecessary delay would be caused by a trial in the District Court; or

(b) that either by reason of the probable costs of the trial in the District Court, the questions of law involved in the proceedings, or because there is reason to believe that a fair trial can not be had in the District Court…

[9] There is no evidence before me which indicates that there is any delay or inconvenience, or any other reason to suggest that the District Court is not the proper forum for the claim. Consistent with the reasons which I gave in Trout v Stocker,[2]  I take the view that the terms “might have been brought in a District Court within its jurisdiction” imports both the notion of the character of the action and a reference to the current monetary limit on the District Court’s jurisdiction.  That being the case, I come to the view that the claim can properly be brought within the jurisdiction.  

[10] I will therefore allow the application.

Orders.

 

1. That these proceedings (9/2006) be remitted to the District Court at Cairns.

2. That the plaintiff pay the second defendant’s costs of and incidental to the proceedings to be assessed on the standard basis, the operation of such order to be delayed for a period of 14 days from the date hereof to allow the plaintiffs, by written submission, to seek a different order.

Footnotes

[1] Ex TSJ 5 to affidavit of Trent Selby-Jones sworn 11 May 2006

[2] Unreported, Cairns 55 of 2002, 26 March 2003.

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Editorial Notes

  • Published Case Name:

    Sanders v Lowrey & Anor

  • Shortened Case Name:

    Sanders v Lowrey

  • MNC:

    [2006] QSC 262

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    31 Jul 2006

Litigation History

No Litigation History

Appeal Status

No Status