Hill v O'Brien
[1999] NSWSC 1013
•7 October 1999
Reported Decision: [1999] 29 MVR 559
New South Wales
Supreme Court
CITATION: Hill v O’Brien [1999] NSWSC 1013 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20203/1998 HEARING DATE(S): 27 September 1999 JUDGMENT DATE:
7 October 1999PARTIES :
Kerry Ann Hill (Plaintiff)
v
Colin Dermott O’Brien (Defendant)JUDGMENT OF: Master Malpass
COUNSEL : L Muston (Plaintiff)
Mr A R Ashburner (Defendant)SOLICITORS: W D Hunt & Associates (Plaintiff)
Ferguson Holz (Defendant)CATCHWORDS: Dismissal or Stay; two proceedings in different jurisdictions for the same cause of action; should the stay be permanent; each case will turn on its own circumstances. ACTS CITED: Motor Accidents Act 1988 (as amended). CASES CITED: Moore and others v Inglis 50 ALJR 589. DECISION: See paragraph 14.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
THURSDAY 7 OCTOBER 1999
20203/1998 KERRY ANN HILL v COLIN DERMOTT O’BRIEN
JUDGMENT
1 On 27 July 1995, the plaintiff suffered injury in a motor vehicle accident at Daintree in the State of Queensland. On 6 November 1997, she commenced proceedings in the District Court of Queensland held at Cairns. In those proceedings she made a claim for damages arising out of inter alia the personal injury suffered in the accident.
2 On 2 July 1998, she commenced proceedings in this Court. Her Statement of Claim pleads the same cause of action as is alleged in the Queensland proceedings.
3 The proceedings have been brought in this Court because it is a more convenient forum. The plaintiff resides in New South Wales, as do many of her proposed witnesses.
4 On 31 May 1999, the solicitors for the defendant forwarded a letter to her solicitors in the following terms:-
“We have received instructions to act for the Defendant. On 6 November 1997 the Plaintiff commenced proceedings in the District Court of Queensland held at Cairns on the same cause of action and those proceedings remain on foot. The Plaintiff is not entitled to maintain two separate actions. Our instructions are to apply for dismissal and/or a stay of the New South Wales proceedings unless, within 7 days, the Queensland proceedings have been discontinued.”
5 The plaintiff has not discontinued the Queensland proceedings. On 21 June 1999, the defendant filed a Notice of Motion. It seeks either the dismissal or a stay of the New South Wales proceedings.
6 On 2 July 1999, the plaintiff filed a Notice of Motion. It seeks various declarations and other relief.
7 Both applications were specially fixed for hearing to take place on 27 September 1999. After the commencement of the hearing, it became apparent that the plaintiff’s application could not further proceed on that day. It was stood over generally. Whilst the relief had been framed in terms of seeking declarations which seemed to be of an interlocutory nature, she was in substance seeking inter alia the separate determination of various questions which as yet had not been formulated. The court proceeded to hear the defendant’s application.
8 The position of the plaintiff is that she has not made any election. At the outset, the court was informed that she intended to discontinue her Queensland proceedings if she obtained the relief enabling her to maintain the New South Wales proceedings. During the hearing the plaintiff moved to the position of not opposing the granting of a temporary stay, but she resisted the defendant’s claim for a permanent stay.
9 The defendant contends that it is an abuse of process to maintain both proceedings. The court has been referred to a number of authorities (including the judgment of Mason J [as he then was] in Moore and others v Inglis 50 ALJR 589). In Moore , reference was made to the general principle that the court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end.
10 The court has a discretionary power to grant a stay. It is exercised having regard to the particular circumstances of the case before it and so that justice is best served between the parties. Each case will turn on its own particular circumstances. The applicant bears the onus of satisfying the court that the relief sought should be granted.
11 In the present circumstances, I am not satisfied that justice would be best served by the granting of a permanent stay. For the moment, I consider that a non-permanent restraint on the conduct of one of the two proceedings will best serve the interests of justice. In due course, one of the proceedings can be expected to be the subject of an order for dismissal or permanent stay.
12 There is power only to stay the proceedings brought in this Court. The plaintiff has neither consented to a stay nor given an undertaking to not prosecute the Queensland proceedings.
13 The plaintiff seems to have placed herself in an invidious position. The maintaining of the New South Wales proceedings is dependent on whether or not she can satisfy provisions of the Motor Accidents Act 1988 (as amended). This may be a tall order. It is a problem which should be addressed with expedition. There is material to suggest that the Queensland proceedings may be presently in an inactive state. A lifting of the stay in these proceedings will depend on the approach taken by her in respect of those in Queensland.
14 I grant a stay of these proceedings. The parties may have liberty to apply on 28 days notice. The plaintiff is to pay the costs of the application.
**********
0
0
0