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 vehicleLegislation 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 19Category: Procedural and other rulings Parties: Bilal El Chami (Plaintiff)
Steven Nicholas Mackie (First Defendant)
JJ Richards & Sons Pty Ltd (Second Defendant)Representation: Counsel:
Solicitors:
E Romaniuk SC with B Tzatzagos (Plaintiff)
D D Feller SC (Defendants)
AJB Stevens Lawyers (Plaintiff)
Vardanega Roberts (Defendants)
File Number(s): 2018/143270 Publication restriction: Nil
Judgment
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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.
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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
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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.
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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.
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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…
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- El Chami v Mackie [2019] NSWSC 821
- Case
- [2019] NSWSC 821
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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