Boral Transport Pty Ltd v Gulic - [2013] NSWCA 150

Court of Appeal

New South Wales

Case Title: Boral Transport Pty Ltd v Gulic

Medium Neutral Citation: [2013] NSWCA 150

Hearing Date(s): 31 May 2013

Decision Date: 31 May 2013

Before: Basten JA at [1], [27];
Meagher JA at [26]

Decision:
(1) Grant leave to Boral Transport Pty Ltd to appeal against the judgment and orders of Sorby DCJ delivered and made on 7 February 2013.

(2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal appearing in the white folder.

(3) Upon the undertaking by the solicitor for the applicant that the notice of appeal will be filed and any necessary fees paid, allow the appeal and set aside the orders made in the District Court on 7 February 2013.

(4) In lieu thereof, make the following orders:

(a) pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, order that the plaintiff submit himself for an MRI examination of his lumbar and lumbar-sacral spine by City X-Ray within 28 days of the date of these orders;
(b) stay the proceedings in the District Court pending the plaintiff's compliance with order (a), and
(c) order that the plaintiff pay the defendant's costs of and incidental to the motion in the District Court.

(5) Order that the respondent pay the applicant/appellant's costs in this Court.

(6) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - civil - interlocutory issues - defendant sought order for plaintiff to undergo MRI examination of lumbar spine - whether court should make order - where plaintiff brought action for damages for 2010 injury to upper spine - where previous injury to lumbar spine - where state of lumbar spine relevant to determining extent to which 2010 injury caused incapacity - where plaintiff's medical evidence deficient - where other supportive evidence available to defendant - where possible consequential use of evidence sought for credibility purpose - Uniform Civil Procedure Rules, r 23.4

Legislation Cited: Supreme Court Act 1970 (NSW), s 46A
Uniform Civil Procedural Rules 2005 (NSW), rr 20.26, 23.4

Cases Cited: Purkess v Crittenden [1965] HCA 34; 114 CLR 164
Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715
Watts v Rake [1960] HCA 58; 108 CLR 158

Category: Principal judgment

Parties: Boral Transport Pty Ltd (Applicant)
Marinko Gulic (Respondent)

Representation

- Counsel: Counsel:

J Catsanos (Applicant)
N Ghabar/A J Parker (Respondent)

- Solicitors: Solicitors:

Makinson & d'Apice Lawyers (Applicant)
NSW Compensation Lawyers (Respondent)

File Number(s): CA 2013/69061

Decision Under Appeal

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 150
Decision Date: 31 May 2013

CaseChat Overview and Summary

In Boral Transport Pty Ltd v Gulic, the defendant, Boral Transport Pty Ltd, sought leave to appeal a District Court decision that refused its application for an order compelling the plaintiff to undergo an MRI examination of his lumbar spine. The plaintiff had brought an action for damages arising from an injury to his upper spine sustained in 2010. The defendant argued that a previous injury to the plaintiff's lumbar spine was relevant to determining the extent to which the 2010 injury caused any claimed incapacity.

The central legal issue before the Court of Appeal was whether the District Court erred in refusing the order for the MRI examination. Specifically, the court had to consider the relevance of the plaintiff's pre-existing lumbar spine condition to the assessment of damages for the upper spine injury, the adequacy of the plaintiff's medical evidence, and the potential for the MRI evidence to be used for credibility purposes by the defendant. The court also considered the application of rule 23.4 of the Uniform Civil Procedure Rules 2005, which governs court-ordered medical examinations.

The Court of Appeal reasoned that the state of the plaintiff's lumbar spine was directly relevant to the assessment of damages for the 2010 injury, particularly in distinguishing between incapacity caused by the new injury and that attributable to pre-existing conditions. The court found that the plaintiff's medical evidence was deficient in this regard and that the MRI evidence was necessary to properly determine the extent of the defendant's liability. The court also acknowledged that the evidence could be used to assess the plaintiff's credibility. Consequently, the Court of Appeal granted leave to appeal, set aside the District Court's orders, and made a new order compelling the plaintiff to submit to an MRI examination of his lumbar and lumbar-sacral spine. The proceedings were stayed pending compliance, and the plaintiff was ordered to pay the defendant's costs of the motion in the District Court.

Orders

Orders of the court

(1) Grant leave to Boral Transport Pty Ltd to appeal against the judgment and orders of Sorby DCJ delivered and made on 7 February 2013.

(2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal appearing in the white folder.

(3) Upon the undertaking by the solicitor for the applicant that the notice of appeal will be filed and any necessary fees paid, allow the appeal and set aside the orders made in the District Court on 7 February 2013.

(4) In lieu thereof, make the following orders:

(a) pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, order that the plaintiff submit himself for an MRI examination of his lumbar and lumbar-sacral spine by City X-Ray within 28 days of the date of these orders;

(b) stay the proceedings in the District Court pending the plaintiff's compliance with order (a), and

(5) Order that the respondent pay the applicant/appellant's costs in this Court.

(6) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Boral Transport Pty Ltd v Gulic
Medium Neutral Citation:	[2013] NSWCA 150
Hearing Date(s):	31 May 2013
Decision Date:	31 May 2013
Before:	Basten JA at [1], [27]; Meagher JA at [26]
Decision:	(1) Grant leave to Boral Transport Pty Ltd to appeal against the judgment and orders of Sorby DCJ delivered and made on 7 February 2013. (2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal appearing in the white folder. (3) Upon the undertaking by the solicitor for the applicant that the notice of appeal will be filed and any necessary fees paid, allow the appeal and set aside the orders made in the District Court on 7 February 2013. (4) In lieu thereof, make the following orders: (a) pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, order that the plaintiff submit himself for an MRI examination of his lumbar and lumbar-sacral spine by City X-Ray within 28 days of the date of these orders; (b) stay the proceedings in the District Court pending the plaintiff's compliance with order (a), and (c) order that the plaintiff pay the defendant's costs of and incidental to the motion in the District Court. (5) Order that the respondent pay the applicant/appellant's costs in this Court. (6) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - civil - interlocutory issues - defendant sought order for plaintiff to undergo MRI examination of lumbar spine - whether court should make order - where plaintiff brought action for damages for 2010 injury to upper spine - where previous injury to lumbar spine - where state of lumbar spine relevant to determining extent to which 2010 injury caused incapacity - where plaintiff's medical evidence deficient - where other supportive evidence available to defendant - where possible consequential use of evidence sought for credibility purpose - Uniform Civil Procedure Rules, r 23.4
Legislation Cited:	Supreme Court Act 1970 (NSW), s 46A Uniform Civil Procedural Rules 2005 (NSW), rr 20.26, 23.4
Cases Cited:	Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715 Watts v Rake [1960] HCA 58; 108 CLR 158
Category:	Principal judgment
Parties:	Boral Transport Pty Ltd (Applicant) Marinko Gulic (Respondent)
Representation
- Counsel:	Counsel: J Catsanos (Applicant) N Ghabar/A J Parker (Respondent)
- Solicitors:	Solicitors: Makinson & d'Apice Lawyers (Applicant) NSW Compensation Lawyers (Respondent)
File Number(s):	CA 2013/69061
Decision Under Appeal