Dean v Phung - [2009] NSWSC 201

CITATION: DEAN v PHUNG [2009] NSWSC 201

HEARING DATE(S): Wednesday 11 March 2009

JUDGMENT DATE :
11 March 2009

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: I order that the issue of liability in these proceedings be tried at the same time as in proceedings No 20006 2008 between Advanced Arbor Services Pty Limited as the plaintiff and Dr Mark Phung as defendant.
The costs of this application reserved to be determined at a future date by the trial judge. An application for costs is made also on behalf of Advanced Arbor Services Pty Limited and is to be determined in the future by the trial judge.

CATCHWORDS: Application to consolidate proceedings

LEGISLATION CITED: Limitation Act 1969
Workers Compensation Act 1987
Fair Trading Act 1987
Civil Procedure Act 2005
Uniform Civil Procedure Rules

CASES CITED: Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR at 530

PARTIES: Todd Owen DEAN v
Mark PHUNG

FILE NUMBER(S): SC No 20571 of 2008

COUNSEL: P: D Hooke
D: D Nock SC
Advanced Arbour: S CampbellSC/M J Walsh

SOLICITORS: P: Beilby Poulden Costello
D: Guild Legal Limited
Advanced Arbour: Turks Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

WEDNESDAY 11 MARCH 2009

No 20571 of 2009

TODD OWEN DEAN v MARK PHUNG

JUDGMENT

1 HIS HONOUR: In these proceedings, application has been made on behalf of the plaintiff, Mr Dean, for an order to consolidate the proceedings with proceedings brought by Advanced Arbor Services Pty Limited against Dr Mark Phung they being proceedings No 20006 2008 commenced by Statement of Claim filed 17 January 2008.

2 The original notice of motion, when it was filed on behalf of Mr Dean on 18 February 2009, was supported by the affidavit of his solicitor sworn 18 February 2009. An amended notice of motion was filed on 6 March 2009 supported by Mr Poulden’s affidavit sworn 4 March 2009.

3 The present proceedings were only commenced on 18 December 2008, that is some eleven months or so after the proceedings brought by Advanced Arbor Services Pty Limited. The proceedings by Advanced Arbor Services were set down by the Registrar on 29 October 2008 for hearing on 25 March 2009 for three days. Both proceedings arise out of an incident, or accident, said to have occurred involving Mr Dean on 19 December 2001.

4 Advanced Arbor Services in its Statement of Claim says the plaintiff was employed as a trainee aborist/agricultural worker and that, on that occasion, he was hit on his chin by a log causing injuries to his teeth and jaw. On 16 January 1982, according to the Statement of Claim to which I have referred, Mr Dean was referred to Dr Phung by Advanced Arbor Services for medical or other treatment of his injuries.

5 It appears from the material on this application that the dental treatment administered by the defendant, Dr Phung, commenced on 16 January 2002 and continued over several months at least in…

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 Dean v Phung

Details

AGLC: Dean v Phung [2009] NSWSC 201
Case: [2009] NSWSC 201
Decision Date: 11 March 2009

CaseChat Overview and Summary

In the case of Dean v Phung, the primary dispute arose between the plaintiff, Dean, and the defendant, Phung, with the proceedings taking place in the Federal Circuit Court of Australia. Dean sought to consolidate two separate proceedings against Phung, arguing that the proceedings were related and should be heard together to avoid the inefficiency of separate hearings.

The legal issues before the court included whether the proceedings could be consolidated under the court's inherent jurisdiction, and whether such consolidation was in the interests of justice. The court needed to consider the nature of the claims in each proceeding, the commonality of issues, and the potential for overlap and repetition in the evidence required for each case.

In determining these issues, the court considered that both proceedings involved similar parties, similar factual backgrounds, and related legal issues. The court recognised that consolidation could streamline the litigation process, reduce costs, and avoid the potential for conflicting outcomes. After evaluating the arguments presented by both parties, the court concluded that consolidating the proceedings was appropriate and in the interests of justice. The court found that the proceedings shared sufficient common issues to warrant consolidation, and that this would serve the interests of judicial economy and fairness. The court granted the application for consolidation, directing that the two matters be heard together in a single proceeding.

Orders