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El Chami v Mackie

El Chami v Mackie

Case [2019] NSWSC 821 3 July 2019

Limitation Periods

Fraud

Causation

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: El Chami v Mackie [2019] NSWSC 821
Hearing dates: 18 June 2019
Date of orders: 03 July 2019
Decision date: 03 July 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The plaintiff’s notice of motion filed 28 March 2019 is dismissed.
(2) Costs are reserved.
Catchwords:
PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider the issue of liability prior to quantum – Where there is a significant overlap of evidence – Where the plaintiff’s credibility is central to determining both liability and quantum
TORT – Personal injury – Motor accident – Where the defendant alleges that the plaintiff is fraudulently claiming to have been in the vehicle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 60
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4(1)
Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Crawley v Vero Insurance Ltd [2012] NSWSC 593
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Mason v Demasi [2009] NSWCA 227
Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36
Southwell v Bennett [2010] NSWSC 1372
State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19
Category: Procedural and other rulings
Parties: Bilal El Chami (Plaintiff)
Steven Nicholas Mackie (First Defendant)
JJ Richards & Sons Pty Ltd (Second Defendant)
Representation:
Counsel:
E Romaniuk SC with B Tzatzagos (Plaintiff)
D D Feller SC (Defendants)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Vardanega Roberts (Defendants)

File Number(s): 2018/143270
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 28 March 2019, the plaintiff seeks an order for a separate determination on the issue of liability, and that liability be heard prior to the issue of quantum. The defendant opposes the order sought.
The plaintiff is Bilal El Chami. The first defendant is Steven Nicholas Mackie. The second defendant is JJ Richards & Sons Pty Ltd. The parties relied upon their joint court book.

The pleadings

By statement of claim filed 7 May 2018, the plaintiff alleges that he was a passenger in a motor vehicle bearing Queensland registration XXXXTK, which was driven by Ali Ahmad Merkbawi. The first defendant was the driver of a motor vehicle bearing New South Wales registration XXXXAM. The second defendant was the owner of vehicle XXXXAM.
On 13 June 2013, the vehicle in which the plaintiff was travelling was stationary on West Terrace, Bankstown. The first defendant controlled, manoeuvred and/or steered the second defendant’s vehicle in such a fashion so as to result in the front of that vehicle colliding with the rear of the plaintiff’s vehicle.
The force of the collision propelled the vehicle in which the plaintiff was travelling forward, resulting in a second collision between the plaintiff’s vehicle and…

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 El Chami v Mackie

Details

AGLC: El Chami v Mackie [2019] NSWSC 821
Case: [2019] NSWSC 821
Decision Date: 03 July 2019

CaseChat Overview and Summary

The case of El Chami v Mackie involved a personal injury claim following a motor vehicle accident. The plaintiff, Mr El Chami, sought damages for injuries sustained in the accident, while the defendant, Mr Mackie, denied liability and further alleged that the plaintiff had fabricated his presence in the vehicle. The matter was before the Local Court of New South Wales, which was required to determine whether the issue of liability could be decided separately from the issue of quantum under the Uniform Civil Procedure Rules 2005 (NSW), rule 28.2.

The court was tasked with examining whether the significant overlap of evidence in the case warranted a separate determination of liability prior to the assessment of damages. The overlap in evidence was critical because the plaintiff's credibility was integral to both the determination of liability and the assessment of quantum. The court needed to weigh the potential for prejudice to the defendant if the issues were not separated against the procedural efficiency and the overall fairness of the trial.

The court determined that the significant overlap of evidence concerning the plaintiff's credibility justified a separate determination of the issue of liability. This decision was made to avoid potential prejudice to the defendant and to ensure that the trial proceeded in a manner that was just and efficient. By separating the issues, the court aimed to maintain procedural fairness and to provide a clearer focus on the contested matters. The court found that the application to separate the determination of liability was appropriate under the circumstances.

The court made an order that the issue of liability would be determined separately from the issue of quantum. This decision allowed for the issues to be addressed in a manner that avoided potential prejudice and ensured a fair trial process. The court's ruling underscored the importance of carefully considering the application of rule 28.2 in cases where there is a significant overlap of evidence and where the credibility of the plaintiff is central to both liability and quantum issues.

Orders