Grace v El Masri - [2013] VSC 432

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7224 of 2009

JASON GRACE	Plaintiff
- and -
MOUNIR EL MASRI	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 August 2013
DATE OF RULING:	16 August 2013 (Written reasons 19 August 2013)
CASE MAY BE CITED AS:	Grace v El Masri
MEDIUM NEUTRAL CITATION:	[2013] VSC 432	Revised 19 August 2013

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PRACTICE AND PROCEDURE – adjournment of a trial – prospective spinal surgery – 16 years since the subject transport accident – inadequate evidence to justify adjournment – Civil Procedure Act 2010 (Vic) ss 7, 8, 9 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 49.03.

APPEARANCES:	Counsel	Solicitors
Plaintiff	Mr A D B Ingram	Holding Redlich/Adviceline Injury Lawyers
Defendant	Mr P V Bourke	Transport Accident Commission

HIS HONOUR:

Introduction

Mr Jason Grace’s motorcycle collided with Mr Mounir El Masri’s motor vehicle at an intersection in Brunswick on 11 June 1997.

On Friday 16 August 2013 I dismissed Mr Grace’s application to adjourn the trial of his claim for damages due to be heard on Wednesday 21 August 2013. I gave extempore reasons and promised more detailed written reasons which now follow.

The relevant legislation, rules and principles

The relevant considerations in an application such as this involve balancing the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness with the necessity for case management in a busy court: See ss 9(1) and (2) of the Civil Procedure Act 2010 (Vic).

Rule 49.03 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) gives the Court discretion to ‘adjourn a trial on such terms as it thinks fit’.

The overarching purpose of the Civil Procedure Act 2010 (Vic) is:

...to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[1]

[1]Section 7(1) of the Civil Procedure Act 2010 (Vic).

In exercising or interpreting any of its powers, the Court must seek to give effect to the overarching purpose of the Act.[2]
[2]Section 8 of the Civil Procedure Act 2010 (Vic).

Section 9(1) provides that in making any order or giving any direction in a civil proceeding, a court shall further the Act’s overarching purpose by having regard to the following objects:

(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii)the preparation of the case for trial;

(f) the timely determination of the civil proceeding; and
(g) dealing with a civil proceeding in a manner proportionate to—

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 Grace v El Masri

Details

AGLC: Grace v El Masri [2013] VSC 432
Case: [2013] VSC 432
Decision Date: 16 August 2013 (Written reasons 19 August 2013)

CaseChat Overview and Summary

The plaintiff, Grace, sought an adjournment of a trial against the defendant, El Masri, due to her intention to undergo spinal surgery. The dispute arose 16 years after a transport accident that Grace claimed caused her injuries. The case was heard in the Supreme Court of Victoria. The legal issues revolved around whether the plaintiff's proposed surgery constituted sufficient grounds for delaying the trial, in light of statutory provisions and procedural rules. Specifically, the court needed to consider the balance between the plaintiff's health needs and the principles of expeditious resolution of litigation, as outlined in the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The court meticulously evaluated the evidence presented regarding the plaintiff's medical condition and the timing of the proposed surgery. It also examined the procedural history and the potential prejudice to both parties. In its judgment, the court found that the evidence did not justify an adjournment, emphasising the importance of avoiding unnecessary delays in litigation. The plaintiff's intention to undergo surgery, without concrete proof that the surgery would significantly impact her ability to participate in the trial, did not meet the threshold for an adjournment under the applicable legal framework.

Given the findings, the court dismissed the application for an adjournment. The trial proceeded as scheduled, underscoring the principle that adjournments should only be granted when there is a compelling reason to delay the proceedings. The decision highlighted the court's commitment to ensuring the efficient administration of justice while also considering the individual circumstances of the parties involved.

Orders