Casey v Hart and Hart v Casey - [2016] NSWDC 317

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Casey v Hart & Hart v Casey [2016] NSWDC 317
Hearing dates: 28 October 2016
Date of orders: 25 November 2016
Decision date: 25 November 2016
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
(1) Pursuant to UCPR r 28.2, the question of primary liability is severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings;
(2) The orders sought in the Notice of Motion filed by the Plaintiff Casey, in paragraph [1] and in the Amended Notice of Motion, by the Plaintiff Hart in paragraphs [1](a) – (c) are declined; and
(3) The Plaintiffs are to pay the Defendants’ costs.

Catchwords:
APPEARANCES AND REPRESENTATION – separate representation of parties in interests as Plaintiff and Defendant – disapproval through costs orders – power of Court to restrain compulsory third party insurer from acting in the interests of insured Defendant
PRACTICE AND PROCEDURE – separate question for determination prior to hearing of the remainder of proceedings – power of Court to control proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW) s 62
Evidence Act 1995 (NSW) s 26
Motor Accidents Compensation Act 1999 (NSW) s 77, 78, 79, 81, 87, 119
Uniform Civil Procedure Rules (NSW) rr 6.1, 6.9, 6.32, 7.8, 28.2
Cases Cited: Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125
Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Grimwade v Meagher & Ors [1995] 1 VR 446
Hodgson v Crane (2002) 55 NSWLR 199; [2002] NSWCA 276
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Roth v RTA & Ors [2009] NSWSC 295
Southwell v Bennett [2010] NSWSC 1372
Tan v Mitchell [2006] NSWCA 178
Van Eeden v Henry (2005) 62 NSWLR 301; [2005] NSWCA 14
Category: Procedural and other rulings
Parties: Ms Beverley June Casey
Mr Sidney Robert Hart
Representation:
Counsel:
Mr E Romaniuk SC with Mr M Eirth (for the Plaintiff, Casey)
Mr S Harben SC (for the Defendant, Hart)
Mr T Hickey (for the Plaintiff, Hart)
Mr A Stone SC (for the Defendant, Casey)
Farrell Lusher (for the Plaintiff, Casey)
Moray & Agnew (for the Defendant, Hart)
Commins Hendricks Solicitors (for the Plaintiff, Hart)
McInnes Wilson (for the Defendant, Casey)

File Number(s): 2012/61701; 2013/197636
Publication restriction: Nil

Judgment

Before the Court are two notices of motion, being:

One filed by the Plaintiff, Beverly June Casey, [1] in 2012/61701; and

One filed by the Plaintiff, Sidney Robert Hart, [2] in an amended form, in proceedings 2013/197636.
1. Beverly Casey was also referred to as “Beverley June” Casey
2. Sidney Robert Hart was also referred to as “Robert Sidney” Hart

These proceedings relate to a single vehicle motor accident said to have occurred on 22 May 2011, in which the Plaintiff in each instance, asserts that they were the passenger. Ms Casey was…

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.

Keep reading for free

Create a free CaseChat account to read Casey v Hart and Hart v Casey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWDC 317
Decision Date: 25 November 2016

CaseChat Overview and Summary

The parties in this case were Casey and Hart, who were separately represented in their interests as plaintiff and defendant respectively. The dispute revolved around the issue of primary liability in a motor vehicle accident, with both parties seeking orders against the other's compulsory third party insurer. The case was heard in the Supreme Court of New South Wales.

The court was required to decide several legal issues. Firstly, whether the court had the power to restrain a compulsory third party insurer from acting in the interests of the insured defendant. Secondly, whether the question of primary liability should be severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings. Finally, whether the costs orders made against the plaintiffs were appropriate.

The court held that it did have the power to restrain a compulsory third party insurer from acting in the interests of the insured defendant. The court also found that the question of primary liability should be severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings. The court declined to make the orders sought by the plaintiffs, and instead ordered that the plaintiffs pay the defendants' costs.

In summary, the court found in favour of the defendants and declined the orders sought by the plaintiffs. The court also held that it had the power to control proceedings and restrain a compulsory third party insurer from acting in the interests of the insured defendant. The costs orders made against the plaintiffs were also upheld.

Orders

Orders of the court

(1) Pursuant to UCPR r 28.2, the question of primary liability is severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings;

(2) The orders sought in the Notice of Motion filed by the Plaintiff Casey, in paragraph [1] and in the Amended Notice of Motion, by the Plaintiff Hart in paragraphs [1](a) – (c) are declined; and

(3) The Plaintiffs are to pay the Defendants’ costs.

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.

Medium Neutral Citation:	Casey v Hart & Hart v Casey [2016] NSWDC 317
Hearing dates:	28 October 2016
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	(1) Pursuant to UCPR r 28.2, the question of primary liability is severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings; (2) The orders sought in the Notice of Motion filed by the Plaintiff Casey, in paragraph [1] and in the Amended Notice of Motion, by the Plaintiff Hart in paragraphs [1](a) – (c) are declined; and (3) The Plaintiffs are to pay the Defendants’ costs.
Catchwords:	APPEARANCES AND REPRESENTATION – separate representation of parties in interests as Plaintiff and Defendant – disapproval through costs orders – power of Court to restrain compulsory third party insurer from acting in the interests of insured Defendant PRACTICE AND PROCEDURE – separate question for determination prior to hearing of the remainder of proceedings – power of Court to control proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 62 Evidence Act 1995 (NSW) s 26 Motor Accidents Compensation Act 1999 (NSW) s 77, 78, 79, 81, 87, 119 Uniform Civil Procedure Rules (NSW) rr 6.1, 6.9, 6.32, 7.8, 28.2
Cases Cited:	Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Grimwade v Meagher & Ors [1995] 1 VR 446 Hodgson v Crane (2002) 55 NSWLR 199; [2002] NSWCA 276 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 Roth v RTA & Ors [2009] NSWSC 295 Southwell v Bennett [2010] NSWSC 1372 Tan v Mitchell [2006] NSWCA 178 Van Eeden v Henry (2005) 62 NSWLR 301; [2005] NSWCA 14
Category:	Procedural and other rulings
Parties:	Ms Beverley June Casey Mr Sidney Robert Hart
Representation:	Counsel: Mr E Romaniuk SC with Mr M Eirth (for the Plaintiff, Casey) Mr S Harben SC (for the Defendant, Hart) Mr T Hickey (for the Plaintiff, Hart) Mr A Stone SC (for the Defendant, Casey) Farrell Lusher (for the Plaintiff, Casey) Moray & Agnew (for the Defendant, Hart) Commins Hendricks Solicitors (for the Plaintiff, Hart) McInnes Wilson (for the Defendant, Casey)
File Number(s):	2012/61701; 2013/197636
Publication restriction:	Nil