Harris v Bunker Freight Lines Operations Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

Harris v Bunker Freight Lines Operations Pty Ltd [2014] NSWSC 1193

Hearing dates:

27/08/2014

Decision date:

27 August 2014

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)The order made on 24 April 2013 for a separate determination of the issue of liability is revoked.

(2)Fix the matter for directions before the common law case management Registrar on Monday 1 September 2014 at 9am for consideration of the question of whether these proceedings should be referred to a Judge of this division for judicial case management.

(3)The costs of the motion are costs in the cause

Catchwords:

PROCEDURE - civil - interlocutory issues - application to revoke order for hearing of separate questions

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), s 56
Motor Accidents Compensation Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 28

Cases Cited:

Nominal Defendant v Manning (2000) 50 NSWLR 139;
Southwell v Bennett [2010] NSWSC 1372

Category:

Interlocutory applications

Parties:

Richard Harris by his tutor Jillian Davey (Plaintiff)
Bunker Frieght Lines Operations Pty Ltd (First Defendant)
TNT Australia Pty Ltd (Second Defendant)
Villacare Pty Ltd (Cross Defendant)

Representation:

Counsel: J De Greenlaw (Plaintiff)
J Turnbull (First Defendant)
D Perla (Second Defendant)
TJ Willis (Cross Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Carroll & O'Dea (First Defendant)
Moray & Agnew (Second Defendant)
Sparke Helmore (Cross Defendant)

File Number(s):

2012/51415

EX TEMPORE Judgment

1. Mr Harris claims personal injuries for an acquired brain injury suffered in a single motor vehicle collision which occurring on 4 September 2006 when the semi-trailer he was driving rolled over on the Great Western Highway near Hartley.

1. He was in the course of his employment with the cross-defendant and has been in receipt of workers compensation since then. These proceedings claiming common law damages were not commenced until 2012 and it is apparent that, in addition to issues strictly going to liability and quantum, there will be a question of whether the claim is statute-barred, on the one hand, and whether the Court has power to, and should, extend time, on the other hand, if the applicable limitation provision is such as allow a flexible extension. In this case, that would only be applicable if the accident was a motor accident, a matter disputed by the first defendant, the owner of the truck he was driving.

1. On 23 April 2013 Schmidt J ordered, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that issues of liability be heard separately from, and in advance, of issues of quantum. No such separate hearing has yet occurred and part of the reason for that, as contemplated by her Honour when she made the orders, is that other parties have been joined. In particular, the second defendant, who it is said was responsible for the loading of the trailer, has been joined, as has Mr Harris' direct employer as cross-defendant.

1. The parties are in contest about the cause of the accident.…