Clifford v Toad Park Pty Ltd t/as Mawson Lakes Hotel

[2017] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation:

Clifford v Toad Park Pty Ltd t/as Mawson Lakes Hotel [2017] NSWSC 743

Hearing dates:

7 & 8 June 2017

Date of orders:

08 June 2017

Decision date:

08 June 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1.   Order that the hearing dates for 19 - 23 June 2017 be vacated.

 

2.   Order that the Plaintiff pay 50% of the Defendant's costs of the Notice of Motion filed 29 May 2017 and the costs thrown away by reason of the adjournment of the hearing dates.

 

3. Order that, pursuant to section 26 of the Civil Procedure Act, the matter be referred to mediation on 19 June 2017.

 

4.   Note that the parties have agreed to the appointment of Larry King SC as mediator.

 

5.   List the matter for hearing for 5 days commencing 9 April 2018.

 

6.   List the matter for directions on 26 June 2017 before the Registrar.

 7.   Liberty to apply to Davies J’s associate on 24 hours’ notice in relation to s 77 order.

Catchwords:

PROCEDURE – adjournment – personal injury proceedings – hearing fixed for June 2017 – plaintiff incarcerated since December 2015 – criminal trial listed for August 2017 – recent negotiations regarding a plea – belief that plaintiff will be released from custody by December 2017 – need for updated medicals in civil proceedings – cost of s 77 order for 5 day trial if not adjourned – hearing vacated

Cases Cited:

Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Category:

Procedural and other rulings

Parties:

Mark Clifford (Plaintiff)
Toad Park Pty Ltd t/as Mawson Lakes Hotel (Defendant)

Representation:

Counsel:
P Bates (Plaintiff)
N Chen SC (Defendant)

    Solicitors:
Gerard Malouf & Partners (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s):

2014/271173

Judgment

1. These proceedings commenced on 15 September 2014. They are personal injury proceedings. The Plaintiff claims to have suffered a severe electric shock and consequential injury and loss from touching live wires in premises of the Defendant.

2. The matter has proceeded in a generally orderly fashion and had been fixed for a five-day hearing on 19 June 2017 during the course of last year. That was despite the fact that the Plaintiff had been incarcerated pending the hearing of various criminal charges from December 2015. Those criminal charges were due to be heard in August of this year.

3. The Plaintiff's legal advisers had proceeded until recently on the basis that the Plaintiff would remain in custody and that the civil proceedings would have had to have been conducted in reliance on medical examinations that took place prior to the Plaintiff going into custody, and on the basis that the Plaintiff would be brought to court under a section 77 order to give his evidence and perhaps remain for the duration of the civil trial.

4. However, a relatively short time ago negotiations apparently commenced between the lawyers acting for the Plaintiff in his criminal proceedings and the Director of Public Prosecutions.

5. The Plaintiff, therefore, by Motion, sought to vacate the civil hearing, which had been set down for 19 June, on the basis that it was believed that the Plaintiff was likely to be released from custody by December 2017. If the civil proceedings were vacated and he was so released that would give the opportunity for both parties to update their medicals and do other preparation that would not otherwise be possible whilst the Plaintiff remained in custody.

6. The Defendant opposed the vacation of the civil hearing. The Defendant pointed to the paucity of evidence to justify the belief that the Plaintiff would be released from prison sometime this year. The Defendant also objected to the vacation of the hearing for the usual and valid reasons that Defendants do object to delay.

7. The Defendant has an insurer involved. That insurer is anxious for the proceedings to be finalised so that the claim can be removed from its books. Many authorities including High Court authorities like Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 testify to the validity of those concerns by defendants and their insurers.

8. Objection was taken to a portion of an affidavit of the solicitor for the Plaintiff where she expressed her belief, based on what she had been told about when the Plaintiff would be released from custody. That led to a brief adjournment of the hearing to enable the Plaintiff's counsel to obtain further material to justify that matter. A letter was tendered which did not go very much further than the objected evidence but it certainly expressed a hope and belief of the solicitor who has acted for the Plaintiff in the criminal proceedings that the negotiations for guilty pleas on some but not all of the charges the Plaintiff was facing would result in him being released by the end of this year.

9. He has been in custody, as I have said, for a period now of 18 months and by the end of this year, two years.

10. Although the evidence is very flimsy in that regard, there seems to me to be other considerations. First is that it is unsatisfactory for the civil proceedings to be heard on the basis of medicals that last took place before the Plaintiff went into custody some 18 months ago. That is so for both sides.

11. Secondly, there will be very considerable costs involved in the first instance for the Plaintiff, but depending on the outcome of the civil matter, perhaps for the Defendants in the Plaintiff being brought from custody for a five-day hearing.

12. The parties have indicated that they are keen to use the first day of the existing civil trial to mediate the matter in the hope that it will not have to run to trial.

13. The listing manager has advised me that there are periods of time in 2018 available for the hearing of this matter and counsel have agreed that a hearing commencing on 9 April would be suitable to both of them, if I was minded to vacate the proceedings. The advantage of a hearing at that time would be that if there is validity in the belief of the solicitors acting in the criminal proceedings that the Plaintiff will be released at the end of this year, there will be sufficient time for further medicals to be conducted so that if the civil trial goes ahead it can be on the best information available.

14. I think that the last two matters that I have referred to outweigh the flimsy nature of the evidence concerning the Plaintiff's release. If there is some reasonable prospect that the Plaintiff will be able to go to a civil trial on appropriately updated material and without the cost of the s 77 order, I think that should happen. In the circumstances, the hearing of 19 to 23 June will be vacated.

15. Since I gave an indication of my thinking in this matter, the parties have agreed orders which provide also for the mediation to which I have referred. The Plaintiff accepts that he must pay the costs thrown away by reason of the adjournment. The Defendant seeks the costs of the Motion that resulted in these orders. The Plaintiff resists that. He says that a Motion would have been necessary in any event to obtain the s 77 order. Whilst that may be true, the bulk of the time taken on the present Motion proceedings concerning the hearing at all, should be vacated.

16. In those circumstances, I consider that the Plaintiff should pay 50 per cent of the Defendant's costs of the Motion. Accordingly, I make orders in terms of paragraphs 1 to 6 of the draft order provided to me, noting that the order in relation to the costs of the Motion is that the Plaintiff pay 50 per cent of the Defendant's costs of the Motion.

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Decision last updated: 08 June 2017