Costa v Sortino - [2000] NTSC 28

Costa v Sortino & anor [2000] NTSC 28
PARTIES:CARLO COSTA BNF MASSIMO COSTA
v
GIANFRANCO SORTINO
AND
TERRITORY INSURANCE OFFICE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:77 of 1998; (9808742)
DELIVERED:   8 May 2000
HEARING DATES:   4 and 5 May 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Plaintiff:P. Barr
Defendant:G. Schneider
Third Party:  I. Nosworthy
Solicitors:
Plaintiff:Hunt & Hunt
Respondent:  Waters James McCormack
Third Party:  Ward Keller
Judgment category classification:    B
Judgment ID Number:  ril0014
Number of pages:  8

ril0014
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Costa v Sortino & anor [2000] NTSC 28
77 of 1998; No. 9808742

BETWEEN:
CARLO COSTA BNF MASSIMO COSTA
Plaintiff

AND:
GIANFRANCO SORTINO
Defendant

AND:
TERRITORY INSURANCE OFFICE
Third Party

CORAM: RILEY J
REASONS FOR DECISION
(Delivered 8 May 2000)

In this matter the third party, the Territory Insurance Office, has applied for an order that the issue of liability in the proceedings be tried by the Court with a jury. The hearing of the case on liability is listed to commence before me on 26 June 2000.

The proceedings arise out of a motor vehicle accident in which the plaintiff was seriously injured. It seems his injuries may prevent him from giving evidence in support of his own case. In its application the third party points out that the claim of the plaintiff, if successful, is likely to result in a substantial claim for damages.
It is the case of the plaintiff that, at the time of the accident, he was a front seat passenger in the motor vehicle which was being driven by the defendant, Sortino. The plaintiff alleges that the defendant was negligent in driving the vehicle.
The third party alleges that it was the plaintiff who was driving the vehicle and not the defendant. Although both the plaintiff and the defendant now say that the defendant was the driver the third party says that this was not always the case. On the day of the accident both the plaintiff and the defendant claimed that the plaintiff had been driving at the relevant time. At a later time they each changed their stories. One matter that will be in issue in the trial will be whether the plaintiff and the defendant were telling the truth on one or other of those occasions and, if so, which occasion. It will be the case of the third party that both the plaintiff and the defendant have been guilty of telling lies. However it be characterised there would seem to be little dispute that different stories were told at different times.
Order 47.02 of the Supreme Court Rules provides that all proceedings shall be tried without a jury unless the Court orders otherwise in accordance with s 7 of the Juries Act (NT). That section makes provision for the use of juries in civil cases. It is in the following terms:
“(1)The trial of…

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.

Continue reading Costa v Sortino

Details

AGLC: Costa v Sortino [2000] NTSC 28
Case: [2000] NTSC 28
Decision Date: 8 May 2000

CaseChat Overview and Summary

The Territory Insurance Office has applied for the Supreme Court of the Northern Territory to order that the issue of liability in the proceedings be tried by a jury. The proceedings arose from a motor vehicle accident in which the plaintiff was seriously injured. The plaintiff was a front seat passenger in the vehicle driven by the defendant, who the plaintiff alleges was negligent. The third party alleges that the plaintiff was the driver. The third party has applied for the matter to be tried by a jury on the basis that the plaintiff may be unable to give evidence, that the plaintiff and the defendant have changed their stories, and that the plaintiff's injuries may prevent him from giving evidence in support of his own case. The Territory Insurance Office also noted that a number of witnesses will be called to give evidence from Italy and that the award of damages to the plaintiff will be substantial if successful. The third party also submitted that the evidence in this matter is likely to involve an analysis of strong issues of fact, and allegations of lies which will have to be put, and inferences to be drawn from the behaviour of the parties and witnesses at the scene, at the Royal Darwin Hospital, and in their subsequent conduct. The third party is a public instrumentality and the defendant alleges that he is entitled to be indemnified by the third party pursuant to s 6(1) of the Motor Accidents Compensation Act and if successful in that regard indemnification will come from a fund comprised of compensation contributions paid as a pre-requisite to the registration of motor vehicles. The Territory Insurance Office has submitted that juries are a "good tribunal" to decide cases of hard swearing on either side and where the honour and integrity of witnesses will be at stake. The Court found that the matters raised by the third party were of a nature that was commonly found in proceedings of this kind and did not create any reason for preferring a trial by jury. The application was dismissed.

Orders