Haoma Mining NL v Gibbs
[2017] WASCA 173
•15 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAOMA MINING NL -v- GIBBS [2017] WASCA 173
CORAM: MITCHELL JA
BEECH JA
HEARD: 13 SEPTEMBER 2017
DELIVERED : 15 SEPTEMBER 2017
FILE NO/S: CACV 28 of 2015
CACV 71 of 2017
BETWEEN: HAOMA MINING NL
Appellant
AND
BARBARA JEAN GIBBS
First RespondentINSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
Citation :GIBBS -v- HAOMA MINING NL [No 3] [2015] WADC 57
File No :CIV 1348 of 2007
Catchwords:
Practice and procedure - Application for leave to appeal, application for extension of time within which to appeal, application for stay of proceedings pending resolution of related appeal - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Application for extension of time granted
Application for stay granted
Category: B
Representation:
Counsel:
Appellant: Mr J D Catlin
First Respondent : Ms R L Sorgiovanni
Second Respondent : Mr G R Hancy
Solicitors:
Appellant: Haoma Mining NL
First Respondent : Sorgiovanni Legal
Second Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Gibbs v Haoma Mining NL (No 3) [2015] WADC 57
Gibbs v Haoma Mining NL (No 4) [2016] WADC 105
Gibbs v Haoma Mining NL (No 6) [2017] WADC 67
Gibbs v Haoma Mining NL [2012] WADC 127
Simonsen v Legge [2010] WASCA 238
Western Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
REASONS OF THE COURT:
Introduction
We are dealing with two appeals:
1.CACV 28 of 2015 is an appeal against orders made by the District Court on 22 December 2014. The relevant order which is the subject of the appeal is an order that the appellant's (Haoma's) third party proceedings against the second respondent (the Insurance Commission of Western Australia or ICWA) are dismissed.
2.CACV 71 of 2017 is an appeal against orders made by the District Court on 15 May 2015. The relevant order is an order that judgment be entered for the first respondent (Ms Gibbs) against Haoma in the sum of $448,420.
CACV 28 of 2015 is listed before us for directions. On 17 February 2017, this court made an order that the appeal in CACV 28 of 2015 be stayed until further order of the court.
CACV 71 of 2017 is listed before us to consider applications in that appeal for leave to appeal and for an extension of time in which to appeal. The application for an extension of time in which to appeal is opposed by Ms Gibbs but not ICWA. Haoma and Ms Gibbs also seek an order that the appeal in CACV 71 of 2017 be stayed until a related appeal by Insurance Australia Ltd (IA), being CACV 66 of 2017, is heard and decided or until further order.
Background
Circumstances of accident
On 27 September 2003, Ms Gibbs was driving a Landcruiser between Port Hedland and the Bamboo Creek mine site, when the left rear wheel of the vehicle came off. The body of the vehicle hit the ground and eventually came to a stop on an embankment. The Bamboo Creek mine site was operated by Haoma, which employed Ms Gibbs and also owned the Landcruiser. Ms Gibbs suffered injuries in the accident.
District Court proceedings
Ms Gibbs brought proceedings against Haoma in the District Court of Western Australia, seeking damages for negligence. In those proceedings, Haoma made a third party claim against ICWA, claiming an indemnity under its policy held pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (MVA). ICWA defended the third party proceedings on the basis that Haoma was in breach of a warranty that the vehicle would not be driven in an unsafe or damaged condition.
Haoma also brought third party proceedings against IA, its workers' compensation insurer, claiming an indemnity under its workers' compensation policy. That claim was dismissed by consent on 7 April 2010. This was prior to the trial of the action, which took place in March 2011.
Reasons for decision on 17 August 2012
On 17 August 2012, Judge Schoombee published reasons for decision in which her Honour concluded that Ms Gibbs acted within the scope of her employment when she travelled to and from Port Hedland. Judge Schoombee also found that Haoma breached its non-delegable duty of care as an employer to provide safe equipment to Ms Gibbs, on the basis that the person who had fitted the wheel failed to properly tighten the wheel nuts. Judge Schoombee found that Ms Gibbs was contributorily negligent by failing to stop as soon as she felt an excessive wobble and heard an unusual noise. Ms Gibbs' damages were assessed in the amount of $471,227, reduced by 25% to $353,420 to allow for Ms Gibbs' contributory negligence. The reasons concluded that Haoma's third party claim against ICWA should be dismissed on the ground that Haoma had breached the warranty referred to above.[1]
[1] Gibbs v Haoma Mining NL [2012] WADC 127 (First Decision).
Section 3G of the MVA commenced operation on 1 July 2006. Section 3G relevantly has effect where bodily injury to a person is directly caused by, or by the driving of, a motor vehicle in circumstances giving rise to the owner of the motor vehicle being liable to pay compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (WCA). Where s 3G has effect, neither the MVA nor a policy of insurance required to be issued under the MVA apply in respect of liability for negligence which may be incurred by the owner in respect of the bodily injury, 'other than liability for the negligent driving of the motor vehicle'.
Up to August 2012, the District Court action appears to have been conducted on the basis that the MVA had, prior to the introduction of s 3G of the MVA, applied to claims of bodily injury caused by the driving of a motor vehicle based on the negligence of an employer/owner which did not involve the employer/owner driving the vehicle. Judge Schoombee proceeded on the basis that, notwithstanding the MVA applied to regulate the award of damages, Ms Gibbs was not entitled to recover damages from Haoma until she obtained a determination that her disability was at least 16%, under s 93E(3) of the WCA. Judge Schoombee felt bound to reach this conclusion by the decision of the Full Court in Western Zinc NL v Wesfarmers Transport Ltd, [2] although her Honour doubted the correctness of that decision.[3] Judge Schoombee considered it unnecessary to determine whether s 3G of the MVA operated retrospectively given her view that a determination of at least 16% was required in any event.[4]
[2] Western Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152.
[3] First decision [61] - [64].
[4] First decision [63].
Although Judge Schoombee published reasons on 17 August 2012, no orders were made at that time other than an order adjourning the proceedings and giving the parties liberty to apply.[5] This was done to enable Ms Gibbs to seek a determination of the extent of her disability. Ms Gibbs subsequently obtained a determination that her degree of disability was 41%.
Dismissal of Haoma's claim against ICWA and appeal from that decision
[5] Trial ts 1086 - 1087.
On 22 December 2014, Judge Schoombee made an order that the third party proceedings (by Haoma against ICWA) be dismissed.
On 3 February 2015, Haoma instituted CACV 28 of 2015, which was described in the appeal notice as an appeal against 'a decision on whether [ICWA] was required to provide an indemnity' made by Judge Schoombee on 22 December 2014.
The appellant's case in CACV 28 of 2015 was filed on 17 March 2015. It identified four grounds of appeal. Grounds 1 - 4 attacked Judge Schoombee's finding that Haoma was negligent. Ground 5 contended that Judge Schoombee erred in finding that Haoma breached the warranty in its insurance policy.
Judgment for Ms Gibbs against Haoma on 15 May 2015
Subsequently, on 15 May 2015, Judge Schoombee varied her assessment of damages in light of the determination that the degree of Ms Gibbs' disability was 41%. In doing so, her Honour concluded that s 3G operated retrospectively, so that the MVA did not apply to the action. This was on the basis that s 23 of the MVA deemed the insurance policy at the time of the accident to be altered so that it did not apply to cover Haoma's liability in respect of the accident. Section 23 would only have this effect if that policy was 'in force' at the time when s 3G came into operation. Judge Schoombee held that the MVA policy held by Haoma on 27 September 2003 was in force on 1 July 2006 (when s 3G of the MVA commenced operation). This conclusion was reached on the basis that the policy had been renewed to the point when s 3G came into force, and was a policy pursuant to which Haoma and Ms Gibbs were entitled to obtain cover. This meant that the restrictions in damages imposed by the MVA (which had been applied in the 2012 assessment of damages) did not apply. Damages were reassessed at $448,420 after making a 25% deduction for contributory negligence.[6] Judge Schoombee ordered that judgment be entered for the plaintiff in that amount.
[6] Gibbs v Haoma Mining NL (No 3) [2015] WADC 57 (Second decision).
Judgment in favour of Ms Gibbs was entered on 9 June 2015 in the amount of $448,420 plus costs.
Amendment of appellant's case in CACV 28 of 2015
On 16 June 2015, an amended appellant's case was filed in CACV 28 of 2015. It amended the grounds of appeal, but not in a manner which affected their fundamental nature.
Debt appropriation order and objection
By application dated 18 September 2015, Ms Gibbs applied for a debt appropriation order against IA in respect of IA's liability to indemnify Haoma under the workers' compensation insurance policy. A debt appropriation order was made on 9 October 2015. On 23 December 2015, IA applied for an order that its objection to the debt appropriation order be allowed. On 15 July 2016, Registrar Kingsley ordered that the objection be allowed and the debt appropriation order be set aside.[7] An appeal against that order was instituted to a judge of the District Court.
Application for dismissal of CACV 28 of 2015
[7] Gibbs v Haoma Mining NL (No 4) [2016] WADC 105 (Third decision).
On 9 December 2016, Ms Gibbs applied for the appeal in CACV 28 of 2015 to be dismissed.
District Court appeal re debt appropriation order
On 16 January 2017, Judge Staude heard Ms Gibbs' appeal against the orders of Registrar Kingsley upholding IA's objection to the debt appropriation order. Judgment was reserved at the conclusion of the hearing.
Hearing of application to dismiss CACV 28 of 2015
Ms Gibbs' application for the dismissal of the appeal in CACV 28 of 2015 was heard by Newnes and Murphy JJA on 17 February 2017. A point made at that hearing was that, although the orders of 22 December 2014 which were the subject of the appeal concerned only Haoma's claim against ICWA, the grounds of appeal and submissions in Haoma's appellant's case challenged Judge Schoombee's finding that Haoma was negligent. Counsel for Ms Gibbs made the point that grounds 1 - 4, which challenged the negligence finding, did not relate to the orders made on 22 December 2014. The identified solution was for Haoma to institute a fresh appeal against the orders made on 15 May 2015, with an application for an extension of time to appeal against those orders.
During the course of that hearing, Newnes JA observed:
So that will have to be the subject of a new appeal. Now, it occurs to us that it may be that if you obtain leave to appeal against the decision of May 2015, that there will be some overlap between the contents of the appeal books in this appeal and the new appeal. In those circumstances a possible course is to stay this appeal pending an application to be made within a time to be specified for an application to be made to appeal against the orders of 15 May 2015.
If that application is made, and is successful, then the question of the contents of the respective appeal books can be sorted out at that point. If that application is not made or is unsuccessful, then it will be necessary to revisit this appeal book in that light, and the contents of this appeal would then, of course, be limited to the decision of 22 December 2014. Obviously, they will be in any event, but there may well cross-over between the two. Is that a course that poses any difficulties for your client? (appeal ts 10).
None of the parties indicated any objection to that course, and the court made the following orders:
1.The appeal be stayed until further order.
2.On or before 10 March 2017, the appellant do file and serve any application for leave to appeal against the decision of the primary judge of 15 May 2015.
Objection to debt appropriation order is dismissed on appeal
On 30 May 2017, Judge Staude allowed Ms Gibbs' appeal in relation to the debt appropriation order and ordered that IA's objection to the debt appropriation order be dismissed. Judge Staude expressly dealt with two issues. The first concerned whether the dismissal of Haoma's third party claim against IA by consent in 2010 constituted a final determination of IA's liability to indemnify Haoma. Judge Staude held that it did not. Secondly, Judge Staude considered whether a contractual indemnity is an available debt for the purposes of the Civil Judgments Enforcement Act (CJEA). His Honour held that it was. As there was otherwise no dispute that the workers' compensation policy responded to the claim, IA's objection to the debt appropriation notice was dismissed.[8]
IA's appeal to this court
[8] Gibbs v Haoma Mining NL (No 6) [2017] WADC 67 (Fourth decision).
On 6 June 2017, IA appealed to this court against the dismissal of its objection to the debt appropriation order by Judge Staude (CACV 66 of 2017). The grounds of the appeal are in essence that Judge Staude erred:
1.in holding that, by operation of s 4(1), 3G and 23 of the MVA, Haoma was not required by law to have an insurance policy other than the IA policy to cover it for its liability to Ms Gibbs;
2.in holding that an exclusion in the IA policy, where Haoma was required by a law to have another policy of insurance, did not apply;
3&4.in holding that the dismissal by consent of Haoma's third party claim against IA did not prevent Haoma from subsequently claiming an indemnity;
5.in holding that any liability of IA was an 'available debt' for the purposes of s 46 and s 49 of the CJEA;
6.in treating the determination of IA's objection as if it was a trial; and
7.in allowing the appeal without embarking on the exercise of the discretion in s 55(4) of the CJEA.
Haoma institutes an appeal against primary judgment
On 21 June 2017, Haoma filed an appeal notice in CACV 71 of 2017 against the orders made by Judge Schoombee on 15 May 2015. The grounds of appeal contend that Judge Schoombee erred in holding that s 3G of the MVA had retrospective effect, and erred in holding that Haoma's MVA policy at the time of the accident was 'in force' when s 3G commenced operation for the purposes of s 23 of the MVA. If successful on the current grounds, the effect of that appeal would be to reduce the amount of damages payable to Ms Gibbs by Haoma, by reason of the operation of the provisions of the MVA (although the orders wanted in Haoma's appellant's case in the present appeal do not deal with this consequence).
Leave to appeal in CACV 71 of 2017
The appeal notice in CACV 71 of 2017 indicates that leave to appeal is required, but does not specify the section under which leave is required. Counsel were unable to identify any provision which required Haoma to obtain leave to appeal (as distinct from an extension of time in which to appeal).
Given that this is an appeal against a final judgment, leave to appeal is not required. Section 79(1)(a) of the District Court of Western Australia Act 1969 (WA) confers a right of appeal to this court from a final judgment of the District Court without any requirement for leave. It is therefore unnecessary to make any order on the application for leave to appeal.
Grounds attacking the negligence finding
Grounds 1 - 4 in appeal CACV 28 of 2015 contend that Judge Schoombee erred in finding that Haoma was negligent. Those grounds do not relate to the order appealed against in CACV 28 of 2015, which is an order dismissing Haoma's claim for an indemnity against ICWA. If Haoma was not negligent, then it is not liable to Ms Gibbs and there is no liability which could be the subject of the indemnity. If there is no liability to indemnify, Haoma's third party claim against ICWA for an indemnity must be dismissed. In the circumstances, a successful challenge to the finding of negligence cannot support setting aside the dismissal of the third party proceedings against ICWA.
The grounds of appeal in CACV 71 of 2017, as currently formulated, do not challenge the finding of negligence. Counsel for Haoma indicated that Haoma wished to pursue the challenge to the negligence finding in that appeal.
Grounds 1 - 4 in CACV 28 of 2015 should be struck out on the ground that they are likely to embarrass the hearing of that appeal, being incapable of establishing that Haoma's claim for an indemnity against ICWA should be allowed.
However, subject to the resolution of the application for an extension of time, it is appropriate to grant Haoma leave to amend its grounds of appeal in CACV 71 of 2017 to add the current grounds 1 - 4 in CACV 28 of 2015 to that appeal.
Extension of time in which to appeal
The judgment which is the subject of the appeal in CACV 71 of 2017 was given on 15 May 2015.
The appeal against the orders made on 15 May 2015 was required to be commenced by 5 June 2015.[9] The appeal notice in CACV 71 of 2017 was not filed until 21 June 2017, and was not served until 5 July 2017, and so was not commenced until the latter date. Haoma therefore requires an extension of the time in which to appeal of over 2 years.
[9] Rule 26(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
The principles governing the exercise of the court's discretion to grant or refuse an extension of time to appeal are well established, and need not be restated here.[10]
[10] See Simonsen v Legge [2010] WASCA 238 [8].
During the course of oral submissions, counsel for Ms Gibbs accepted that it was appropriate for there to be an extension of time in relation to the current grounds in CACV 71 of 2017 (relating to s 3G and s 23 of the MVA). However, counsel for Ms Gibbs maintained her opposition to an extension being granted if the grounds in CACV 71 of 2017 were amended to seek to impugn the finding that Haoma was negligent.
An unusual feature of this case is that grounds challenging the finding of negligence were on foot prior to the time judgment was entered on 15 May 2015, albeit in an appeal against a different order. The appellant's counsel, Ms Sorgiovanni, has deposed that 'following service of the Appellant's case [on or about 17 March 2015], it became clear that the grounds of appeal in CACV 28 of 2017 were much wider than that stated on the appeal notice'.[11] Ms Sorgiovanni wrote to Haoma on 31 March 2015 pointing out the problem with the inclusion of grounds 1 - 4 in CACV 28 of 2015 and inviting Haoma to withdraw the grounds 'which relate to the unfinished District Court proceedings'.[12]
[11] Affidavit of Rebecca Sorgiovanni sworn 25 August 2017, par 5.
[12] Affidavit of Rebecca Sorgiovanni sworn 25 August 2017, attachment RLS 2.
After judgment was given on 15 May 2015, Ms Sorgiovanni sent an email to Haoma's solicitor inviting Haoma to withdraw the appeal in CACV 28 of 2015.[13] This was on the basis that, in light of Judge Schoombee's ruling as to the operation of s 3G of the MVA, 'this was never an MVTIP claim so it is not possible for Haoma to seek an indemnity from ICWA on the basis that it is an MVTIP claim'.
[13] Affidavit of Rebecca Sorgiovanni sworn 25 August 2017, attachment RLS3.
Haoma did not withdraw grounds 1 - 4 in CACV 28 of 2015, or the appeal, and Ms Gibbs did not apply to strike out those grounds or the appeal until December 2016. The filing of an amended Appellant's Case in CACV 28 of 2015 on 16 June 2015 indicated that Haoma maintained grounds 1 - 4 which sought to impugn the finding that it was negligent.
Ms Gibbs then took steps to enforce the judgment in the manner described above. However, there is no evidence that in doing so Ms Gibbs believed that Haoma's attack on the negligence finding was not being pursued. Nor, in the period up to December 2016, did Ms Gibbs take any steps to pursue the contention that the inclusion of those grounds was flawed.[14] The maintenance of those grounds, albeit in the wrong appeal, can fairly be taken to have alerted Ms Gibbs and those advising her to the fact that the negligence finding was being challenged.
[14] Affidavit of James Yeatman sworn 23 December 2016 par 9, annexures JSY1 - JSY7.
It also appears that, between 17 July 2015 and 9 December 2016, the taking of steps in CACV 28 of 2015 was delayed by agreement between Ms Gibbs and Haoma pending the outcome of Ms Gibbs' enforcement proceedings against IA.[15] On 9 December 2016, Ms Gibbs applied to dismiss CACV 28 of 2015. It was clear at the time of the hearing of that application on 17 February 2017 that the grounds seeking to impugn the negligence finding were being pursued.[16]
[15] Affidavit of James Yeatman sworn 20 June 2017, pars 23 - 32. The reference in that affidavit to the application to dismiss CACV 28 of 2015 being made on 12 December 2016 appears to be in error.
[16] Appeal ts 7, 10.
Haoma's solicitor has deposed that it 'at all times intended to appeal the final decision of the Court imposing liability upon it', but that it 'appealed the decision of 22 December 2014 … on the erroneous basis that it encapsulated the whole decision of the court'.[17] It must be said that, notwithstanding the error being pointed out to Haoma's representatives by both Ms Sorgiovanni and the court, Haoma's legal representatives have been surprisingly slow to comprehend that message. However, the error in effectively advancing grounds prematurely in the wrong appeal is not, in all the circumstances described above, of such a character to warrant Haoma being deprived of a hearing of those grounds on their merits. No party has suggested that the grounds are not reasonably arguable.
[17] Affidavit of James Yeatman sworn 20 June 2017, pars 34, 37.
It is unsatisfactory that the new appeal was not instituted in the time provided for in the orders made by this court on 17 February 2017 in CACV 28 of 2015. However, we infer that Haoma delayed instituting the appeal pending the outcome of the appeal before Judge Staude in which judgment was reserved.
While there are a number of features of this case which weigh against an extension of time, on balance we are persuaded that it is in the interests of justice to grant an extension of time in CACV 71 of 2017 to the date of the commencement of the appeal.
Although the appeal notice in CACV 71 of 2017 was filed on 21 June 2017, it was not served on Ms Gibbs or ICWA until 5 July 2017.[18] No party took any issue with the delay between filing and serving the appeal notice, so it is appropriate to grant an extension of time to 5 July 2017.
[18] Service certificates filed on 5 July 2017.
Stay of current appeals
It is common ground between Haoma and Ms Gibbs that the appeal in CACV 28 of 2015 should remain stayed, and the appeal in CACV 71 of 2017 should be stayed, until the determination of the appeal in CACV 66 of 2017 or until further order. ICWA also consented to such an order in advance of the hearing, although, by the time of the hearing before us, ICWA opposed the stay.
It is common ground between all parties that the current appeals will fall away if IA's appeal in CACV 66 of 2017 is unsuccessful. In that event, IA will pay the existing judgment debt, and there will be no reason for Haoma to continue to prosecute its appeals in CACV 28 of 2015 and CACV 71 of 2017.
We have considerable sympathy for the position of Ms Gibbs in light of the history described above. Her motor vehicle accident occurred over 14 years ago and a finding of negligence was made in her favour over 5 years ago. The judgment she obtained on 12 May 2015 remains unsatisfied. Counsel for Ms Gibbs submits that if the appeals are heard together she will incur considerably more costs in responding to all appeal grounds and all submissions than if she can deal only with the IA appeal. It is submitted on her behalf, without contradiction, that she is currently on a disability pension and, until the judgment sum is paid, has very limited means. Her position has been aggravated by the unnecessary complication introduced by Haoma's procedural mistakes, and by the fact that Haoma has not pursued its own claim against IA.
We are not convinced that the course proposed by Ms Gibbs and Haoma will in fact lead to a saving in cost or time for those parties. If IA's appeal is successful, the result will be that the other parties need to prepare for and undertake two separate appeal hearings with the consequent cost and further delay. From the parties' perspective, less expense and delay may result if all issues in all appeals were determined at the same time. The saving in legal costs which they anticipate will only be achieved if IA's appeal is in fact dismissed. Even in the event that IA's appeal is dismissed, there remains the prospect of IA exercising its right of subrogation after payment of the judgment sum and pursuing the current appeals in Haoma's name. We are concerned that the perceived benefits of the separate determination of IA's appeal may be illusory.
However, in the end we are persuaded by the submission that the parties are in the best position to judge their own commercial interests and the court should defer to that judgment. We are prepared to respect the decision of Ms Gibbs and Haoma that they do not wish to further litigate the issues raised in the current appeals if Ms Gibbs is able to effectively enforce the judgment by means of the debt appropriation order (which decision does not prejudice ICWA as Haoma's claim against it would remain dismissed).
There is no prejudice to the administration of justice if IA's appeal is heard first and separately, as the issues which it raises (aside from the s 3G issue) are discrete. Any decision as to the operation of s 3G and s 23 of the MVA in IA's appeal will be binding on all parties, so long as ICWA is joined as a party to that appeal (which would be an appropriate direction to be made in CACV 66 of 2017 before it is heard if the grounds dealing with those sections continue to be advanced in that appeal[19]). Joining ICWA in CACV 66 of 2017 should not cast a significant additional burden on it, as ICWA agrees with the position advanced by IA that Judge Schoombee erred in the construction of s 3G and s 23 of the MVA.
[19] There is an unresolved application by Ms Gibbs in CACV 66 of 2017 to have the grounds relating to s 3G and s 23 of the MVA struck out.
There is a prospect that IA's appeal could be resolved without resolving disputed questions as to the operation of s 3G and s 23 of the MVA. If that occurs, then the court may be required to again consider arguments on that issue in these appeals. However, the position which Ms Gibbs might reasonably take on the operation of the MVA may be affected if IA's appeal is allowed on other grounds. If she cannot effectively enforce judgment against IA, it may be in Ms Gibbs' interests to contend that the MVA does apply. While the quantum of the damages award may be less if the MVA applies, in that event Ms Gibbs will be able to obtain payment of the unsatisfied judgment under s 7 of the MVA. Given that she is, in effect, wedged in the middle of a debate about which of two different insurance regimes apply, it is reasonable to allow Ms Gibbs to preserve her options in the current appeals if the issue of the application of the MVA is not resolved in IA's appeal.
In all the above circumstances, we are satisfied that it is in the interests of justice to grant a stay of the current appeals until IA's appeal is determined or further order. That will be subject to Haoma regularising the appeals by filing substituted appellant's cases in which the grounds challenging the negligence finding in Ms Gibbs' favour are made in CACV 71 of 2017 rather than CACV 28 of 2017. Against the background we have outlined, the process of regularising Haoma's appeals should occur without further delay and should not await the outcome of CACV 66 of 2017.
Orders
For the reasons above we would make the following orders in the appeals:
CACV 28 of 2015
1.Grounds 1 - 4 of the appellant's amended grounds of appeal in its appellant's case filed on 16 June 2015 are struck out.
2.By 4.00 pm on 11 October 2017, the appellant must file and serve on the respondents a further amended appellant's case which gives effect to order 1 of these orders (including by further amending the appellant's amended submissions so that they address only appeal ground 5) and properly identifies the orders wanted if the appeal is successful.
3.Order 1 of the orders made by the court on 17 February 2017 is discharged.
4.Subject to orders 1 and 2 of these orders, the appeal is stayed until the determination of the appeal in CACV 66 of 2017 or further order.
CACV 71 of 2017
1.The time for the appellant to appeal against the orders made by the District Court on 15 May 2015 is extended to 5 July 2017.
2.The appellant have leave, by 4pm on 11 October 2017, to amend its appellant's case by:
(a)adding grounds to the effect of grounds 1 - 4 of the amended appellant's case filed in CACV 28 of 2015 on 16 June 2015;
(b)adding submissions in support of those grounds;
(c)properly identifying the orders wanted if the appeal is successful (including by specifying the amount by which the appellant says damages should be reduced if the current grounds are successful but the other grounds fail).
3.Subject to orders 1 and 2 of these orders, the appeal is stayed until the determination of the appeal in CACV 66 of 2017 or further order.
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