Hendricks v El-Dik - [2015] ACTSC 256

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hendricks v El-Dik & Anor
Citation:	[2015] ACTSC 256
Hearing Date:	25 August 2015
DecisionDate:	Order 25 August 2015; Reasons 26 August 2015
Before:	Mossop AsJ
Decision:	The application in proceeding filed 19 August 2015 is dismissed with costs.
Category:	Interlocutory Application
Catchwords:	PERSONAL INJURY – Accident involving motor vehicle and electrically powered bicycle on shared path – application by defendants to vacate hearing dates for ten day trial – defendants contemplating claim against government entities in relation to design, construction and maintenance of shared path – consideration of interests of justice including consideration of personal circumstances of plaintiff, opportunities for preparation for trial, uncertainty of contemplated claim, allocation of court resources – application dismissed
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 21 Limitation Act 1985 (ACT) s 21 Court Procedures Rules 2006 (ACT) rr 21, 316, 1506
Cases Cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Barclays Bank v Tom [1923] 1 KB 221 Port Pirie City and Districts Council v Leenders & Partners Pty Ltd [2001] SASC 208 The Portland Downs Pastoral Company Pty Ltd v Great Northern Developments Pty Ltd [2010] QSC 467 Traynor v Australian Capital Territory [2007] ACTSC 38
Parties:	Mohgamat Hendricks (Plaintiff) Walid El-Dik (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:	Counsel Mr A Black SC and Mr D Crowe (Plaintiff) Mr J Poulos QC (First and Second Defendants)
Solicitors Slater & Gordon (Plaintiff) Sparke Helmore (First and Second Defendants)
File Number:	SC 460 of 2013

Introduction

The defendants in personal injury proceedings applied to vacate a ten day hearing scheduled to commence next Monday. The application was filed on 19 August 2015. It was heard yesterday, 25 August 2015. The hearing which was sought to be vacated is listed to commence on 31 August 2015 and run until 11 September 2015. At the conclusion of argument on the application I dismissed the application with costs and indicated that I would give my reasons today. These are my reasons.

Chronology of proceedings

The accident the subject of these proceedings occurred on 20 January 2012. As a result of the accident the plaintiff was rendered a quadriplegic. The accident occurred when the plaintiff was riding an electrically powered bicycle along a path in Milford Street in Latham in the Australian Capital Territory. He collided with a vehicle that was reversing from the driveway of a house on that street.

The proceedings were commenced by originating claim filed on 29 November 2013. The defendants filed their defence on 2 April 2014. The defendants have denied liability and, if liability is established, have contended that the accident was wholly or partially caused by the contributory negligence of the plaintiff.

At a directions hearing on 11 July 2014 Penfold J noted that the parties were seeking dates for a five day hearing early in 2015. On 8 August 2014 the parties were given leave 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 Hendricks v El-Dik

Details

AGLC: Hendricks v El-Dik [2015] ACTSC 256
Case: [2015] ACTSC 256
Decision Date: 26 August 2015

CaseChat Overview and Summary

The defendants in the matter of Hendricks v El-Dik applied to vacate the hearing dates for a ten-day trial that had been scheduled. The dispute arose from an accident involving the plaintiff's electrically powered bicycle and a motor vehicle driven by one of the defendants. The application was heard in the Supreme Court of Victoria. The defendants sought to vacate the trial dates on the basis that they were contemplating a claim against government entities in relation to the design, construction, and maintenance of the shared path where the accident occurred. They argued that the claim against the government entities would likely delay the resolution of the current proceedings, potentially affecting the interests of justice.

The court was required to consider various factors, including the personal circumstances of the plaintiff, the opportunities for preparation for trial, the uncertainty of the contemplated claim against the government entities, and the allocation of court resources. The court needed to weigh these considerations to determine whether the interests of justice would be best served by vacating the hearing dates. The court acknowledged the defendants' intention to bring a claim against government entities, but also recognised the importance of resolving the plaintiff's claim in a timely manner.

In reaching its decision, the court emphasised the need to balance the interests of all parties involved. The court found that the personal circumstances of the plaintiff and the need for a timely resolution of the matter outweighed the uncertainty of the potential claim against the government entities. The court also noted that the defendants had ample time to prepare for the trial and that vacating the hearing dates would result in further delays and an inefficient use of court resources. Consequently, the application to vacate the hearing dates was dismissed, and the costs of the application were awarded against the defendants.

The court's decision underscores the importance of considering the broader implications of a party's proposed course of action on the resolution of the matter before the court. The court's order ensures that the plaintiff's claim will proceed as scheduled, providing a timely resolution to the dispute. The dismissal of the application and the awarding of costs against the defendants sends a clear message that the court will not countenance unnecessary delays in the resolution of personal injury claims.

Orders

Orders of the court

The application in proceeding filed 19 August 2015 is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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