Harris v Bunker Freight Lines Pty Ltd

[2013] NSWSC 419

Supreme Court

New South Wales

Medium Neutral Citation:

Harris v Bunker Freight Lines Pty Ltd [2013] NSWSC 419

Hearing dates:

24 April 2013

Decision date:

24 April 2013

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. Pursuant to r 28.2 of the Uniform Civil Procedure Rules this matter be heard separately from the issue of liability and quantum.

2. Costs of the motion be costs in the cause.

Catchwords:

PROCEDURE - notice of motion - leave sought to have issue of liability and quantum heard separately - granted - costs

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Richard Harris by his next friend Jillian Davey (Plaintiff)
Bunker Freight Lines Operations Pty (Defendant)

Representation:

Counsel:
Mr J Turnbull (Defendant)
Solicitors:
Mr Z Hiramanek
George Malouf & Partners (Plaintiff)
Carroll & O'Dea Lawyers (Defendant)

File Number(s):

2012/51415

Publication restriction:

None

EXTEMPORE Judgment

1. These proceedings were commenced by statement of claim filed in February 2012. They concern an accident in which the plaintiff was involved in December 2006. The proceedings are presently being pressed pursuant to an amended statement of claim filed in February 2013.

1. By notice of motion filed on 27 February 2013 the defendant seeks orders under r 28.2 of the Uniform Civil Procedure Rules 2005 that in this matter the issue of liability be heard separately from the issue of quantum.

1. The plaintiff does not necessarily oppose such an order being made, but has submitted that it is one which should not be made as yet. That submission has been advanced in circumstances where the plaintiff has been investigating another potential defendant, and has foreshadowed further amendment to the statement of claim to join that further defendant. That is an application which, if made, the present defendant will not oppose.

1. The adjournment of the motion was opposed in circumstances where the investigation into the addition of another defendant has been ongoing for some time, but is not yet resolved, it appears, as the consequence of some difficulties in relation to the return of a subpoena.

1. From the submissions which have fallen from both parties it is apparent that both the liability and quantum cases are likely to be complex ones.

1. Under the rules the usual position is that issues are not to be determined separately, but there are circumstances in which the Court's discretion to order separation can be exercised. Separate determination of liability and damages is one of the circumstances where such separation has been recognised to be appropriate in particular circumstances. They include circumstances where resolution of damages is likely to be particularly complex.

1. It strikes me that this is such a case. The only real downside to which the plaintiff could point, which might be a reason for refusing to make the order sought, is that there might then be some delay in assessment of damages if the plaintiff succeeds against either the current or foreshadowed defendants.

1. That has to be accepted, but it seems to me in the circumstances, given the time at which this accident occurred, the time at which the proceedings commenced, the course which the proceedings have since taken, and what yet needs to be done to bring the proceedings to a point where even the liability question can be decided, that cannot be determinative.

1. For all of those reasons I make the order sought, namely:

1. Pursuant to r 28.2 of the Uniform Civil Procedure Rules this matter be heard separately from the issue of liability and quantum.

2. Costs of the motion be costs in the cause.

1. I direct that prior to the next listing, the plaintiff provide the defendant with proposed directions as to further steps necessary to be taken to prepare the matter for hearing on liability. I also direct that the plaintiff serve the foreshadowed expert's report as soon as possible, and no later than six weeks from today. The matter is adjourned to the Registrar's list on 8 May 2013.

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Decision last updated: 26 April 2013