Laccona v Beyer - [2013] VSC 403

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2011 4240

GIOVANNI LACCONA	Plaintiff
v
SHERIN BEYER AND OTHERS	Defendants

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2013
DATE OF JUDGMENT:	12 August 2013
CASE MAY BE CITED AS:	Laccona v Beyer
MEDIUM NEUTRAL CITATION:	[2013] VSC 403

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JUDGMENT

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PRACTICE AND PROCEDURE – Personal injury claim in respect of a motor vehicle accident in Fiji – Application for a stay on grounds that Victoria is a clearly inappropriate forum – Relevance of limited insurance coverage of second and third defendants.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Gordon	Slater & Gordon
For the Second and Third Defendants	Mr J. Graham	DLA Piper Australia

HER HONOUR:

The plaintiff, Mr Laccona, is an elderly man, who lives in a nursing home in Sydney. In August 2008 he suffered very severe injuries, resulting in paraplegia, in a motor vehicle accident in Fiji (“collision”). The second and third defendants are, respectively, the driver of a vehicle with which the vehicle in which Mr Laccona was a passenger collided, and the driver’s employer, the operator of a transport business. The first defendant was the driver of the motor vehicle in which Mr Laccona was a passenger, is a former neighbour of Mr Laccona’s, and is resident in Victoria. The fourth defendant was the driver of another vehicle involved in the collision, and is apparently a resident of New Zealand. Neither the first or fourth defendants have filed an appearance in this proceeding. The second and third defendants filed a conditional appearance on 27 March 2013. No defences have been filed by any party.

The second and third defendants have applied for a stay of the proceeding against them on the grounds that Victoria, while having jurisdiction to hear the claim, is a clearly inappropriate forum.

The second and third defendants rely upon two affidavits of their solicitor, Mr David Leggatt, sworn on 6 June 2013 and 17 June 2013, an affidavit by a Fiji based legal practitioner, Mr Jon Apted, sworn on 4 June 2013, and an affidavit of a director of the third defendant, Ms Sharina Rahim, affirmed on 12 April 2013. The plaintiff, who opposes the application for a stay, relies upon affidavits sworn by his solicitors, Ms Joanne Panagakis and Ms Serina Dowding on 24 April 2013 and 19 June 2013 respectively.

Mr Leggatt deposed, in summary, as follows:

(a)the parties to the proceeding and its progress to date;
(b)his anticipation that if the second and third defendants defended the proceeding, they would contest all aspects of the plaintiff’s claim, that there would likely be significant areas of dispute as to the circumstances and causes of the collision, and possibly as to the extent and causes of the plaintiff’s injuries, and that it would be necessary for the second and third defendants to file notices of contribution against the…

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 Laccona v Beyer

Details

AGLC: Laccona v Beyer [2013] VSC 403
Case: [2013] VSC 403
Decision Date: 12 August 2013

CaseChat Overview and Summary

Laccona v Beyer is a case concerning a personal injury claim brought in relation to a motor vehicle accident that occurred in Fiji. The plaintiff, Laccona, was injured in the accident and subsequently sought damages from the drivers and owners of the vehicles involved. The defendants, Beyer and two other parties, were the drivers and owners of the vehicles at the time of the incident. The case was heard by the Supreme Court of Victoria, which was required to determine whether it was an appropriate forum for the proceedings and whether the application for a stay of the proceedings should be granted.

The court needed to consider several legal issues, including whether the choice of Victoria as the forum was appropriate, given that the accident occurred in Fiji. This involved an examination of the jurisdiction of the court and the factors that might make Victoria a clearly inappropriate forum. Additionally, the court had to consider the relevance of the limited insurance coverage of the second and third defendants in relation to the plaintiff's claim for damages. This involved a consideration of the implications of the insurance coverage on the potential for recovery of damages.

In reaching its decision, the court examined the relevant case law and statutory provisions. It found that while the accident occurred in Fiji, there were connections to Victoria that warranted the court's jurisdiction. The court also considered the potential for the plaintiff to recover damages from the defendants, despite the limited insurance coverage of the second and third defendants. Ultimately, the court concluded that Victoria was not a clearly inappropriate forum for the proceedings and that the application for a stay should be dismissed. This decision was based on the court's assessment of the factors relevant to determining the appropriate forum and the potential for the plaintiff to recover damages.

The final orders of the court included a dismissal of the application for a stay of proceedings and a determination that Victoria was an appropriate forum for the proceedings. The court's decision allowed the personal injury claim to proceed in Victoria, despite the accident occurring in Fiji, and recognised the potential for the plaintiff to recover damages from the defendants.

Orders