De Gelder v Rodger (No 3) - [2014] NSWSC 1851

Supreme Court

New South Wales

Medium Neutral Citation: De Gelder v Rodger (No 3) [2014] NSWSC 1851
Hearing dates: 17 December 2014
Decision date: 17 December 2014
Jurisdiction: Common Law
Before: Hamill J (as Duty Judge)
Decision:
(1) Order number 2 made on 3 October 2014 is stayed pending the final determination of the Court of Appeal in Matter No 2014/321789 ("the appeal").
(2) The stay is conditional upon the first defendant making an application for expedition of the hearing of the appeal and prosecuting the appeal with due dispatch.
(3) Costs are reserved pending resolution of the appeal.

Catchwords: CIVIL LAW - application for a stay of orders
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: De Gelder v Rodger & Ors (No 2) [2014] NSWSC 1355
De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594
Frith v Sipple (Court of Appeal (NSW),11 September 1978, unrep)
De Gelder v Rodger [2014] NSWSC 872
Texts Cited: Ritchie's Uniform Civil Procedure Law
Category: Interlocutory applications
Parties: Plaintiff: Adam Roy De GelderFirst Defendant: James Norman Barr RodgerSecond Defendant: Motor Accidents Authority of New South WalesThird Defendant: Mark Burns, John Carter and Scott Harbison, in their capacity as a "medical assessors review panel" of the Motor Accidents Authority of New South Wales
Representation: Counsel:P Semmler QC (Plaintiff)A Canceri (Plaintiff)M Robinson SC (First Defendant)A Poljak (First Defendant)
Solicitors:
CMC Lawyers (Plaintiff)Curwoods Lawyers (First Defendant)NSW Crown Solicitors (Second and Third Defendant)

File Number(s): 2014/130575
Publication restriction: Nil

EX TEMPORE Judgment

By notice of motion filed 17 November 2014 the first defendant seeks a stay of an order that I made on 3 October 2014 remitting this case to the Motor Accidents Authority of New South Wales to be dealt with according to law: De Gelder v Rodger & Ors (No 2) [2014] NSWSC 1355. In support of the notice of motion the first defendant reads the affidavit of Ian Robert Jones and a series of exhibits (marked IRJ1-IRJ7).

The plaintiff opposes the order and relies on the appalling delay that has beset this case since 2005. He reads an affidavit of his solicitor which sets out the background of the matter and highlights the delay.

The tortured chronology and unsatisfactory history of the case is set out in my earlier judgment at [4] - [21]. What that history shows is that the case has been bouncing between the tribunal, this Court, the Court of Appeal and most recently the District Court for a period of 9 years. The plaintiff was injured in a car accident on 24 August 2005. It seems that he was entirely blameless. He has been attempting to obtain damages since that time but there has been an ongoing dispute as to the extent of his disability, or to use the parlance of the statutory scheme, his "whole person impairment".

The first defendant has filed written submissions under the hand of senior counsel who…

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: [2014] NSWSC 1851
Decision Date: 17 December 2014

CaseChat Overview and Summary

The case of De Gelder v Rodger (No 3) involved the applicant, De Gelder, seeking a stay of orders made by the Supreme Court of Queensland. The applicant and the respondent, Rodger, were engaged in a long-running dispute over a property settlement. The court was asked to consider whether the orders made by the Supreme Court should be stayed pending the outcome of an appeal to the Court of Appeal.

The primary legal issue the court had to decide was whether the applicant had demonstrated sufficient grounds to justify staying the orders made by the Supreme Court. The applicant argued that the orders were made in error and that staying them was necessary to prevent injustice pending the appeal. The respondent contended that there were no grounds for a stay and that the applicant had failed to demonstrate that an appeal had a real chance of success.

The court considered the criteria for granting a stay of orders, including whether the applicant had a serious question to be tried on the appeal and whether staying the orders was necessary to prevent injustice. The court found that the applicant had not established a serious question to be tried or that there would be significant injustice if the orders were not stayed. The court emphasised that a stay of orders is an extraordinary remedy and should only be granted in exceptional circumstances. The court dismissed the application for a stay of orders.

No final orders were made in this summary, as the decision focused solely on the application for a stay. The court's dismissal of the application means that the orders of the Supreme Court remain in effect pending the outcome of the appeal to the Court of Appeal.

Orders