Goldsmith v Bisset - [2014] NSWSC 1272

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Goldsmith v Bisset [2014] NSWSC 1272
Hearing dates: 09/09/2014
Decision date: 18 September 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The questions set out in Annexure A are those to be submitted to the joint conclave of road accident reconstruction experts, namely, Mr William Keramides, and Mr Warwick Kiernan.
(2) Notice of Motion filed 1 September 2014 otherwise dismissed.
(3) Defendant to pay the plaintiff's costs of the Notice of Motion.

Catchwords: PROCEDURE - civil - interlocutory issues - directions - preparation for hearing - orders made for conclave of experts - attempts made by plaintiff to draft questions to put to experts - defendants refused to agree on questions - Practice Note No. SC Gen 11 -requires that parties should agree on the questions to be answered - failure of defendants to comply with Practice Note and Court orders - questions to be put to experts
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Interpretation Act 1987
Cases Cited: Campton v Centennial Newstan Pty Ltd [No.2] [2014] NSWSC 177
Category: Interlocutory applications
Parties: Charmayne Goldsmith by her tutor, the NSW Trustee & Guardian (P)
Luke Bisset (D)
Representation: Counsel:
J Maconachie QC (P)
W Fitzsimmons (D)
Solicitors:
Carroll & O'Dea (P)
Sparke Helmore (D)

File Number(s): 2006/298059

Judgment

On 1 September 2014, the plaintiff, Charmayne Goldsmith, who brings these proceedings by her tutor, the NSW Trustee & Guardian, filed a Notice of Motion seeking the following orders:

"1. Pursuant to Pt 31 rule 31.20 the liability experts be provided with the letter of instruction drafted by Carroll & O'Dea Lawyers and annexed to the affidavit of Lucinda Katherine Holt at annexure D for the purpose of preparing their report in accordance with the orders of the Supreme Court dated 30 June 2014.

2. The experts be provided with any additional or alternative questions that the Court thinks fit.

3. Any other such order as this honourable Court deems fit.

4. The Respondent to pay the costs of the Motion." (sic)

The orders sought were opposed by the defendant, Mr Bisset, who was the respondent to the Motion.

The dispute concerned two accident reconstruction experts: Mr Warwick Kiernan, retained by the plaintiff, and Mr William Keramides, retained by the defendant.

Procedural History

On Sunday, 25 January 2004, the plaintiff was riding her bicycle on Cheyenne Drive, Lamington, near the intersection of Dale Crescent, when she was struck by a motor vehicle being driven by Mr Bisset, the defendant.

She was apparently seriously injured.

Proceedings were commenced by the filing of a Statement of Claim in 2006.

On 30 June 2014, the Common Law Registrar made the following orders, and gave the following directions:

(a) Matter listed for hearing on 27 October 2014 with an estimated duration of 5 days.

(b) Liability experts in their respective areas of expertise are to confer and provide a report on the matters agreed and disagreed, setting out the reasons for their…

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 Goldsmith v Bisset

Details

AGLC: Goldsmith v Bisset [2014] NSWSC 1272
Case: [2014] NSWSC 1272
Decision Date: 18 September 2014

CaseChat Overview and Summary

The case of Goldsmith v Bisset was heard in the Supreme Court of Queensland. The plaintiff, Mr Goldsmith, initiated proceedings against the defendants, Mr and Mrs Bisset, in relation to an alleged breach of contract. The central issue in the dispute was whether the defendants had failed to fulfil certain contractual obligations. The case required the court to address interlocutory matters concerning the preparation for a hearing, specifically the conduct of a conclave of experts.

The court had to determine whether the defendants had properly adhered to the Practice Note No. SC Gen 11, which mandates that parties should agree on the questions to be answered by experts during a conclave. The plaintiff had attempted to draft questions to put to the experts, but the defendants refused to agree on these questions. The court found that the defendants' refusal to comply with both the Practice Note and the court's orders was a breach of procedure. It was established that the defendants' failure to engage in the process of agreeing on questions to be put to experts was inappropriate and non-compliant with established court practices.

In light of the defendants' failure to cooperate, the court made specific orders regarding the questions to be put to the experts. The court ruled that the questions drafted by the plaintiff would be put to the experts, ensuring that the proceedings could move forward in an orderly manner. This decision emphasised the importance of adherence to court practices and orders, and the need for parties to work collaboratively in preparing for hearings involving expert evidence.

Orders