Hendricks v El Dik (No 5) - [2016] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hendricks v El Dik (No 5)
Citation:	[2016] ACTSC 302
Hearing Date:	23 August 2016
DecisionDate:	23 August 2016
Before:	Mossop AsJ
Decision:	See [22]
Catchwords:	PRACTICE AND PROCEDURE – Application for stay of order pending appeal – Judgment in favour of plaintiff in personal injury proceedings – Disabled plaintiff – Where second defendant has offered to pay care and treatment expenses of the plaintiff pending determination of appeal – Where second defendant has already made significant payments – Balancing exercise – Timeframe for hearing and determination of the appeal – Stay granted on the condition that a further sum be paid to the plaintiff
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 5301
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Davey v Herbst [2011] ACTCA 27 Griffiths v Australian Postal Commission (1987) 87 FLR 139 Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104; (1999) 48 NSWLR 381 Volanne Pty Ltdv International Consulting and Business Management Pty Ltd [2015] ACTCA 25 Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; (2011) 80 NSWLR 445
Parties:	Mohgamat Hendricks (Plaintiff) Walid El-Dik (First Defendant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Second Defendant)
Representation:	Counsel A Black SC (Plaintiff) D Wilson SC (Defendants)
Solicitors Slater & Gordon (Plaintiff) Sparke Helmore (Defendants)
File Number:	SC 460 of 2013

MOSSOP AsJ:

The application

This is an application for a stay of the orders that I made on 8 July 2016. As part of that judgment I directed that judgment be entered in favour of the plaintiff in the sum of $9 million. The defendants have applied under r 5301 of the Court Procedures Rules 2006 (ACT) for a stay of that order pending appeal. They have filed a notice of appeal dated 3 August 2016 and propose that a stay be granted on the basis that the second defendant continue to pay the reasonable medical and related care and treatment expenses of the plaintiff pending the determination of that appeal.

The position of the plaintiff is that if the stay is granted, it should be on condition that an additional $2 million, beyond the amounts already paid, be paid to the plaintiff. The second defendant has, during the pendency of the proceedings, paid approximately $900,000 for care and treatment expenses for the plaintiff, and pursuant to an interim order that I made in relation to the present application, has paid an additional $100,000 lump sum to the plaintiff.

The evidence

The defendants’ evidence in support of the application is the affidavit of Mr Owen which describes an offer to continue paying treatment expenses and identifies the concern that if significant amounts are paid over to the plaintiff, and the defendants are then ultimately successful on appeal in displacing…

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 (No 5)

Details

AGLC: Hendricks v El Dik (No 5) [2016] ACTSC 302
Case: [2016] ACTSC 302
Decision Date: 23 August 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Hendricks, the plaintiff, filed a personal injury claim against El Dik, the first defendant, and another party, the second defendant. The plaintiff, who is disabled, sought damages for injuries sustained. The court found in favor of the plaintiff and ordered the defendants to pay the plaintiff's care and treatment expenses pending the outcome of the appeal. The second defendant had already made significant payments towards these expenses. The court had to determine whether to stay the enforcement of the order for the plaintiff's care and treatment expenses pending the appeal.

The primary legal issue before the court was whether to grant a stay of the order for the plaintiff's care and treatment expenses pending the appeal. The court needed to balance the rights of the plaintiff to receive necessary care and treatment against the second defendant's right to have the order stayed until the appeal was determined. The court also needed to consider the timeframe for hearing and determining the appeal, as well as the amount of the plaintiff's care and treatment expenses.

The court held that a stay of the order for the plaintiff's care and treatment expenses pending the appeal should be granted. The court found that the second defendant had already made significant payments towards these expenses, and that the plaintiff's disability and need for care and treatment were significant factors in the balancing exercise. The court also noted that the timeframe for hearing and determining the appeal was reasonable. However, the court granted the stay on the condition that the second defendant pay a further sum to the plaintiff to cover the care and treatment expenses pending the appeal.

The court ordered that the second defendant pay a further sum to the plaintiff to cover the care and treatment expenses pending the appeal. The court also ordered that the stay of the order for the plaintiff's care and treatment expenses pending the appeal be granted on the condition that the second defendant make the additional payment. The court noted that the amount of the additional payment was to be determined by the parties or by the court if the parties could not agree.

Orders

Orders of the court

See [22]

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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