Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited

[2015] NSWSC 1687

Supreme Court

New South Wales

Medium Neutral Citation:	Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2015] NSWSC 1687
Hearing dates:	6 November 2015
Date of orders:	12 November 2015
Decision date:	12 November 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Motion dismissed.
Catchwords:	PROCEDURE – notice of motion – orders sought pursuant to r 7.8 of the Uniform Civil Procedure Rules 2005 (NSW) – motion dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Carter v Marine Helicopters Ltd (1996) 9 ANZ Insurance Cases 61-299 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344; (2008) 74 NSWLR 550 Oasis Fund Management Ltd v Royal Bank of Scotland NV [2010] NSWSC 584
Category:	Procedural and other rulings
Parties:	Buses + 4WD Hire Pty Limited ACN 091 133 489 (First Plaintiff) Shannon Baglee (Second Plaintiff) Oz Snow Adventures Pty Limited ACN 101 270 553 (First Defendant) Matthew Goodall (Second Defendant)
Representation:	Counsel: Mr J Gracie (Plaintiffs) Mr D Smith (Defendants)   Solicitors: Vardanega Roberts (Plaintiffs) Stevens Cottee Lawyers (Defendants)
File Number(s):	2013/374167
Publication restriction:	None

Judgment

1. These proceedings concern a bus accident which occurred in June 2011 when the bus hired by the first plaintiff to the first and/or second defendant, which was being driven by the second plaintiff, Mr Goodall, crashed through a guardrail and rolled down an embankment, on a return trip to Sydney from Thredbo, causing injury, loss and damage to some 21 of the 48 passengers being carried. It is alleged that the crash was the result of negligence.

2. The proceedings were commenced in the District Court in 2013 and were later transferred to this Court.

3. By motion filed in October 2015, the plaintiffs sought what was accepted to be an unusual order, pursuant to r 7.8 of the Uniform Civil Procedure Rules 2005 (NSW) which permits the Court to give the conduct of the whole or any part of any proceedings to such person as it thinks fit. The orders sought were:

“1. For an order pursuant to Uniform Civil Procedure Rules Regulation 7.8 that Todd Porman, Senior Associate of Messrs. Hicksons, Lawyers, Level 32, 2 Park Street, Sydney NSW 2000 be appointed as a person to conduct the issues between the First Plaintiff and the First and Second Defendants as pleaded in:

1.1   Paragraph 10A

1.2   The extent of physical damage to the bus as pleaded in paragraph 15

1.3   Paragraph 19A.2

1.4   Paragraphs 45 to 51.

1.5   Paragraphs 54.3 to 54.6

1.6   Paragraphs 55 and 56 of the Amended Statement of Claim.

2.   Such further and better orders as the Court thinks fit.”

4. The motion was supported by affidavits sworn by Ms Russell, the plaintiffs’ solicitor, who is ligating the proceedings on the instructions of the statutory insurer under a policy issued to the first plaintiff, under the Motor Accidents Compensation Act 1999 (NSW), Zurich Australian Insurance Limited.

5. The orders sought were opposed by the defendants. There was also in evidence an email of 4 November 2015 from Mr Porman at Hicksons, opposing the orders sought. That firm acts for the property insurer of the bus, Australian Bus and Coach Underwriting and Mr Porman appears to have carriage of the matter. None of them were either parties to the proceedings or to the motion and they were not represented at the hearing of the motion, but the email indicated that they also opposed the order sought.

6. Their interest in the proceedings arose from the fact that Australian Bus and Coach had paid out on its policy, in respect of the property damage to the bus. On Ms Russell’s 27 October affidavit, from her dealings with Mr Porman, it appears that Australian Bus and Coach agitates a claim in respect of damage to the bus, which had been damaged beyond economic repair and that Mr Porman might also have instructions from a director of the first plaintiff, to agitate a claim in demurrage. There has also been a dispute between Australian Bus and Coach and the defendants, as to the right of a bailee or sub-bailee to prosecute a claim for recovery of property damage.

7. A further amended statement of claim was filed in these proceedings, which raises the claim Australian Bus and Coach wishes to pursue. That has led the defendants to pursue requests, including as to particulars, in relation to those claims. That had involved Zurich in time, trouble and expense, which Ms Russell says are difficult for it to deal with in the proceedings and involves it in expenses which it must bear.

8. In the result, it is proposed that Mr Porman be appointed to conduct the litigation in so far as it concerns the specified paragraphs of the amended statement of claim, which are said to deal with these issues.

9. The difficulties with this application are obvious.

10. Where, as here, there is a representative party, there must be good reason for taking the unusual course of giving conduct of the litigation, or a part of it, to some other representative. No authority could be pointed to where such an order had been made, directed to the firm of solicitors engaged by another representative, let alone to a named solicitor employed by that firm, such as Mr Porman, whose only interest in the proceedings flows from his employment by the firm that has instructions from the other insurer.

11. Were such an order to be made, it would give rise to significant potential problems, in the event that Mr Porman left the firm for any reason, or was no longer available to act for the other insurer, or it was no longer prepared to have Mr Porman or Hicksons, continue to act for it in the proceedings. Nor do the orders make any provision for how Mr Porman is to be remunerated for his time, or by whom, or who is to instruct him.

12. It is difficult to see how such an order could be made consistently with the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just quick and cheap resolution of the real issues in the proceedings.

13. The other difficulty is that whatever be the position in relation to the conduct of the proceedings as between Zurich, the first plaintiff’s statutory insurer, the plaintiff and its property insurer, Australian Bus and Coach Underwriting, so far as the Court and the defendants are concerned, the first plaintiff is the one party, as discussed in Carter v Marine Helicopters Ltd (1996) 9 ANZ Insurance Cases 61-299.

14. As there, it appears that Zurich has the prime right to conduct the litigation, subject to its obligation to the other insurer, Australian Bus and Coach Underwriting, about which there was no dispute between the parties. There, the myriad of difficulties which could potentially arise were considered in a context where the insurers were acting for the defendant, when orders such as those here sought, were pursued. They went to questions such as the address for service; the resulting expenses incurred by double service; differing stances potentially taken on interlocutory applications, such as discovery or interrogatories and at trial, on the calling of evidence and cross-examination of witnesses (see at 76,346-47). There it was contemplated that the solution might be to join the other insurer as a party, or separate proceedings being issued (at 76,347).

15. In Oasis Fund Management Ltd v Royal Bank of Scotland NV [2010] NSWSC 584, Biscoe AJ considered, however, that r 7.8 was not a source of power for the joinder or or substitution of a party to the proceedings. That is not sought here, but his Honour also considered that:

“…it is difficult to imagine that the conduct of proceedings would be given to a non party without also joining the person as a party, as was envisaged on a non-party’s r 7.8 application in Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344, 74 NSWLR 550 at [7], [57]”

16. In Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344, 74 NSWLR 550, Brereton J was considering declarations sought as between trustees as to assets of a trust, where one trustee sought an order under r 7.8 and his Honour took the view that the logical consequence of the conclusions reached was to substitute one trustee for the other as the party to the proceedings, a matter about which he proposed to hear the parties.

17. In the circumstances of this case, I am not satisfied that the order sought can justly be made, given that Mr Porman’s interest in the proceedings flows only from his employment by Hicksons and its current retainer by Australian Bus and Coach Underwriting. Accordingly, the motion must be dismissed and the current problems lying between Zurich, Australian Bus and Coach Underwriting and the defendants must be resolved in some other way, consistent with the parties’ obligations under s 56.

18. It is apparent that from what has fallen from the parties and is revealed by the evidence, that the matter requires case management. For that purpose it will come before Bellew J for directions at 9:30am on 20 November 2015.

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Decision last updated: 12 November 2015