Kalis v Waltham

[2010] ACTSC 94

ROBERT KALIS v  BIBHA WALTHAM
[2010] ACTSC 94 (3 September 2010)

PRACTICE AND PROCEDURE – removal of proceeding from Magistrates Court – action for damages for personal injury arising out of motor vehicle collision – principles to be applied

PRACTICE AND PROCEDURE – motor vehicle personal injury claim – plaintiff injured in subsequent motor vehicle collision – application to join defendant – same insurer – joinder ordered

Magistrates Court Act 1930 (ACT)

No.  SC 526 of 2010

Judge:             Master Harper
Supreme Court of the ACT

Date:              3 September 2010

IN THE SUPREME COURT OF THE     )
  )          No.  SC 526 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ROBERT KALIS

Plaintiff

AND:BIBHA WALTHAM

Defendant

ORDER

Judge:  Master Harper
Date:  3 September 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. Proceeding number CS07/71875 between the plaintiff and the defendant be removed into this court.

2. Following removal, Emma New be joined as a defendant.

3. The plaintiff have leave to file and serve an amended originating claim and statement of claim in the form attached to the originating application dated 13 August 2010 within fourteen days.

1. This is a plaintiff’s application for the removal of an action to this court from the Magistrates Court and for the joinder of a second defendant.

1. The plaintiff claims that he was injured in two unrelated motor vehicle collisions.  The first is said to have occurred in Bentham Street Yarralumla on 25 March 2007, and the second at the intersection of Mort and Cooyong Streets, Canberra City on 8 January 2008. 

1. The plaintiff’s action in the Magistrates Court was commenced on 22 October 2007.  The plaintiff was then represented by Mr Paul Crabb, Solicitor, of Capital Lawyers.  The collision is said to have occurred in circumstances where the plaintiff was driving along Bentham Street when the defendant reversed into the path of his vehicle.  I was informed on the hearing of the application that the plaintiff’s case will be that the collision occurred in that portion of Bentham Street adjacent to the Yarralumla shopping centre, where there is provision for right-angle nose-to-curb parking, and that the defendant reversed out of a parking space into the plaintiff’s path.  The plaintiff’s injuries are said to have been an injury to the neck causing aggravation of pre-existing cervical spondylosis, and injuries to both shoulders.  Particulars are set out in the statement of claim of treatment expenses to that date of $760.10, domestic assistance valued at $180 and loss of earnings of $3185.97. 

1. The application is supported by an affidavit by the plaintiff’s present solicitor, Mr Richard Faulks of Stacks Compensation Lawyers.  Mr Faulks was admitted as a solicitor in 1983.  He has a substantial plaintiffs’ personal injury practice and very considerable experience in that area.  It is a matter of general knowledge in the Canberra legal community that he is chairman of the civil litigation committee of the Law Society of the Australian Capital Territory, and a former national president of the Australian Plaintiff Lawyers Association.

1. In his affidavit, Mr Faulks…