Faris v Faris; Faris v Sims

[2019] ACTCA 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Faris v Faris; Faris v Sims

Citation:

[2019] ACTCA 18

Hearing Date:

1 August 2019

DecisionDate:

1 August 2019

Before:

Elkaim J

Decision:

See [30]

Catchwords:

APPEALS – Application for leave to appeal from interlocutory judgment – Motor Vehicle Accident – Two separate accidents – overlapping injuries – consolidating proceedings – fresh evidence – interests of justice – application refused

Legislation Cited:

Court Procedures Act 2004 (ACT) s 5A

Road Transport (Third Party Insurance) Act 2008 (ACT) Chapter 4

Supreme Court Act 1930 (ACT) ss 37E, 37J

Cases Cited:

Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48

House v The King (1936) 55 CLR 499

Parties:

Linda Faris (Applicant)

Rabea Faris (Respondent in proceedings ACTCA 23 of 2019)

Martin Sims (Respondent in proceedings ACTCA 24 of 2019)

Representation:

Counsel

L Edwards (Applicant)

S Whybrow (Respondents in proceedings ACTCA 23 of 2019)

J Dempster (Respondents in proceedings ACTCA 24 of 2019)

Solicitors

United Legal (Applicant)

Moray & Agnew (Respondents in proceedings ACTCA 23 of 2019)

Sparke Helmore (Respondents in proceedings ACTCA 24 of 2019)

File Numbers:

ACTCA 23 of 2019; ACTCA 24 of 2019

ELKAIM J:

1. In these matters I am sitting as a single judge in the Court of Appeal pursuant to s 37J of the Supreme Court Act 1930 (ACT). I am dealing with an application for leave to appeal made under s 37E.

1. There are two applications before the court, both seeking leave to appeal from the decisions of McWilliam AsJ made on 31 May 2019. The applications are supported by an affidavit of Mr Noman Farooq sworn on 5 June 2019. This affidavit refers to an earlier affidavit of Mr Farooq sworn on 16 May 2019 which, in turn, refers to an affidavit of Mr Peter Glover sworn on 13 December 2018.

1. The background to the applications is that the applicant was involved in two motor vehicle accidents on 1 December 2014 and 19 July 2018 respectively. Matter No ACTCA 24 of 2019 relates to the first accident and No ACTCA 23 of 2019 relates to the second accident.

1. For convenience I will refer to the accidents, and their related proceedings, as the 2014 accident and the 2018 accident respectively. In the 2014 accident, according to the statement of claim, the applicant was the driver of a van. The first defendant did not give way, contrary to a give way sign, at an intersection and collided with the applicant’s vehicle. Breach of duty of care has been admitted.

1. Mr Faris, the applicant’s husband, is the first defendant in the proposed proceedings arising from the 2018 accident. He was the driver of a motor vehicle, in which his wife was a passenger, which collided with the rear of a stationary vehicle. There seems little doubt that Mr Faris was negligent. Breach of duty of care has recently been admitted.

1. Mr Faris was also involved in the first accident but he is not a defendant in the action arising from this accident. In fact he has his own claim for nervous shock caused by the 2014 accident.

1. The applicant’s proceedings for the 2014 accident are listed for hearing in October of this year. They were listed by Registrar Kennealy. His decision to set the matter down for hearing was challenged before McWilliam AsJ and is also the subject of a leave application before me today.

1. The other leave application relates to the 2018 accident. The application before McWilliam AsJ was to relieve the applicant of the need to comply with Chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT). If this application was granted the applicant would have been entitled to commence proceedings for damages arising from the 2018 accident notwithstanding that certain steps dictated by Chapter 4 had not occurred.

1. The ultimate intent of the applications before McWilliam AsJ was to have the proceedings for the 2014 and 2018 accidents heard together. Her Honour refused the application in respect of the 2018 accident and disallowed the appeal from the decision of the Registrar.

1. It is also worth noting here that Mr Faris, the applicant’s husband, began his proceedings in the Supreme Court (SC 447 of 2017) but they were transferred to the Magistrates Court in August 2018. The proceedings were listed for hearing in February 2019. The matter did not proceed because the defendants made an application for the matter to be transferred back to the Supreme Court to be heard together with the applicant’s claim for personal injury caused by the 2014 accident.

1. On 12 March 2019 the Registrar transferred Mr Faris’s claim back to the Supreme Court and consolidated it with the applicant’s claim (SC 448 of 2017). The transfer was against the wishes of Mr Faris.

1. In discussion this morning it was accepted that if the application for leave to appeal arising from the 2018 matter was successful then the 2014 accident hearing would necessarily be vacated. If the application was not successful then I indicated I would hear any application on behalf of the plaintiff to vacate the hearing.

1. It was therefore seen as appropriate to deal first with the application arising from the 2018 accident.

1. The principles to be applied in an application for leave to appeal (this being an interlocutory matter) were summarised by Refshauge J in Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48, at [58]:

The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows:

a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

b) a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;

c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;

d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;

e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;

f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and

g) it may be a factor favouring the grant of leave that:

i) the decision involves a matter of public importance;  or

ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

1. In addition, as properly acknowledged by counsel for the applicant, the principles stated in House v The King (1936) 55 CLR 499 were relevant.

1. The applicant asserted there were two errors in the reasons given by McWilliam AsJ. Firstly, it was said that her Honour had failed to recognise that the two accidents in which the applicant was involved were related to the extent that her injuries were overlapping. Secondly, it was said that her Honour had failed to take account of the respective prejudices that flowed from her decision.

1. I have listed above the affidavit evidence that was relied upon before me. It is important to note that the affidavit of Mr Farooq sworn on 16 May 2019, although previously filed, was not read before her Honour. This meant that the medical reports annexed to the affidavit were not considered by her Honour. McWilliam AsJ cannot be criticised for not taking them into account. However, as fresh evidence before me (noting that no objection was made to their tender), I am able to consider them.

1. Her Honour’s reasons were given ex tempore and were concise. They were as follows:

Her Honour: it’s a discretionary thing. I’m guided by section 5A of the Court Procedures Act and what I think is going to be in the best interests of all the parties. Mr Clynes, I accept that your client doesn’t want to go through litigation twice and she certainly doesn’t want to be cross-examined twice and she doesn’t want to run the risk of inconsistent findings, but it’s not just her interests that I have to take into account here.

The fact is that there are two entirely separate incidences and separate parties separately represented, and the nature of the issues may well be entirely different

I don’t know whether liability will be admitted in the second proceedings because we haven’t even got to that point, and if it is not in any way, then it will blow out the trial in October, it will result in parties being there to hear issues that they don’t have an interest in, and I suspect it will result in applications for adjournment by your client, notwithstanding your optimism, because the medical evidence is just not in a state of readiness for October, particularly given that you’re still at the stage of attempting to comply with the compulsory processes under the Road Transport (Third-Party Insurance) Act 2008.

So taking all these matters into account, and in particular the interests of the parties, who currently have the benefit of a hearing that is listed on 28 October 2019, I am not minded to grant your client leave to commence proceedings despite noncompliance in circumstances where there is no potential limitation period looming and in circumstances where the parties are properly represented and progressing those matters in a timely fashion, and in circumstances where it would cause, what I consider to be, significant prejudice to parties, who are not interested in the latest motor vehicle accident in terms of their right and entitlement, to have a hearing in a timely manner in October 2019.

If the position changes and everyone manages to galvanise themselves into action, Mr Clynes, then this is an interlocutory application and you can make it again on the basis that the parties have proceeded expeditiously. In fact, you are ready, and if you get to the point where Ms Douglas’ client has admitted liability and it’s just a fight about damages, you may say, ‘Well, we can join in with the October proceedings because it’s only an extra half day,’ or it’s only an extra day, or something to that effect.

But at the moment, I’m just not satisfied that it’s in the interests of all parties, and particularly the efficiency of the court processes, notwithstanding the unsatisfactory result that the plaintiff may be facing litigation twice.

1. There can be little doubt that where a person has been involved in more than one accident, and there are overlapping injuries between the accidents, that the interests of justice normally favour the matters being heard together. In this case there are no liability issues facing the applicant to complicate such an approach and there is evidence to suggest that the injuries were caused by, if only by aggravation, both accidents.

1. In his report dated 25 April 2019, Dr Champion, a pain management specialist, stated:

In his supplementary report of 12 October 2018 Professor Brew acknowledged the MVA of 19 July 2018. The previous injuries were exacerbated by this second accident, with further headaches, worsened pain in the neck, down the back, and pain referred from the neck into the right should and both arms. He wrote again of her psychiatric consequences of the MVAs. If I interpret the report correctly, he considered that the exacerbating influences of the second MVA might be short term. Otherwise, the conclusions were similar to the primary report.

1. Another example is to be found in the report of Dr Brew, a neurologist, dated 12 October 2018:

The previous injuries that she sustained in the motor vehicle accident from 1 December 2014 were exacerbated by the second accident on 19 July 2018. In detail, she had further headaches, worsened pain in the neck down the back. The additional features to the injuries sustained from the accident on 19 July 2018 were that (from this accident) the pain in the neck going into the right shoulder and into both arms. She remains deaf on the right. Sleep is difficult.

1. My initial reaction was dictated by the general desire to have all of the applicant’s injuries considered at one time. This could be based upon a finding of ‘error’ on the part of McWilliam AsJ because of the effect of the fresh evidence. I would not have otherwise identified any actual error on her Honour’s part.

1. However as shown by the guidelines set out by Refshauge J the decision to grant, or refuse, leave to appeal is fundamentally dictated by the overall justice of the circumstances.

1. There are other factors to be taken into account in this matter. Firstly the consolidation of Mr Faris’ action with that of the applicant may cause difficulties to the defendants to the 2018 accident being able to challenge his evidence concerning his wife. I note that the applicant, who has a claim for economic loss, was employed by him. Further I note that Mr Faris’ claim is being defended on the basis that there is no liability to pay him any damages.

1. More importantly, the defendant in the 2014 accident has been waiting a good deal of time for this matter to come on for hearing. If leave is granted not only will the October hearing date be vacated but there will be a substantial delay. The appeal will need to be heard and then its consequences dealt with. This might involve further rounds of medical examinations in order to bring the medical position of the respective parties up-to-date.

1. There will also of course be substantial costs incurred in an appeal and the resulting proceedings which follow. The wasting of time and costs brings section 5A of the Court Procedures Act 2004 (ACT) squarely into consideration.

1. Ultimately I have decided that leave should not be granted. As far as the fresh evidence is concerned, it is to be remembered that the evidence is not actually fresh, the affidavit having been filed prior to the hearing before McWilliam AsJ. The failure to read the affidavit, whether as an oversight or a tactical decision, rests with the applicant. 

1. Further it is apparent from her Honour’s reasons that she did consider the possibility of overlapping injuries. She stated that she recognised the applicant did not “want to run the risk of inconsistent findings” and she had heard submissions from plaintiff’s counsel that the applicant “wouldn’t want there to be a shortfall on her recovery of damages”. Her counsel had in fact continued: “She would be concerned if they were heard separately that the insurers in the second accident would say her injuries all stem from the first accident, and vice versa” (Transcript page 175).

1. Her Honour’s reasons may be concise, but in my view they appropriately encompassed the issues that were placed before her, and she gave adequate reasons for her decision.

1. I make the following orders:

(i)The application for leave to appeal in matter number ACTCA 23 of 2019, dated 27 June 2019, is dismissed.

(ii)The applicant is to pay the respondent costs of the application, such costs not to be payable until the conclusion of any claim arising from the 2018 accident or the conclusion of any proceedings arising from that claim, whichever is later.

(iii)The application for leave to appeal in matter number ACTCA 24 of 2019, dated 27 June 2019 is dismissed

(iv)The applicant is to pay the respondent costs of the application, such costs not to be payable until the conclusion of the proceedings of the 2014 accident.

(v)The application to vacate the October hearing date is dismissed with no order as to costs

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 1 August 2019