Melenewycz v Whitfield (No 2)

[2015] NSWSC 1957

Supreme Court

New South Wales

Medium Neutral Citation:	Melenewycz v Whitfield (No 2) [2015] NSWSC 1957
Hearing dates:	17 December 2015
Date of orders:	17 December 2015
Decision date:	17 December 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Adjourned the issue of damages until 26 April 2016 for mention or directions.
Catchwords:	CIVIL PROCEDURE – separation of issues of liability and quantification of damages – parties agree that the issues should remain separated to allow the defendant to appeal on the question of liability – where question of construction not previously determined by superior court – where parties not in a position to adduce evidence as to damages – where other cases in the Court awaiting determination of question of law – false economy in proceeding to assess damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 Davis v Swift [2014] NSWCA 458 Mamo v Surace [2014] NSWCA 58 Melenewycz v Whitfield [2015] NSWSC 1482
Category:	Consequential orders (other than Costs)
Parties:	Anthony Melenewycz (Plaintiff) David Patrick Whitfield (First Defendant) AAI Limited t/a Suncorp Metway (Second Defendant)
Representation:	Counsel: R Sheldon SC & J Gumbert (Plaintiff) K P Rewell SC (First & Second Defendants)   Solicitors: Monaco Solicitors (Plaintiff) Curwoods Lawyers (First & Second Defendants)
File Number(s):	2014/00233733
Publication restriction:	Nil

EX TEMPORE Judgment

1. On 4 December, 2015 I delivered a judgment in this matter in which I entered a judgment for the plaintiff and made various ancillary orders: Melenewycz v Whitfield [2015] NSWSC 1482. When the matter first came on for hearing on 7 October 2015 Senior Counsel for each of the parties indicated that because a particular question of construction and law arose on the question of liability it was appropriate to determine the question of liability first, with the question of damages to be considered afterwards.

2. The question of law is set out in a little detail in the judgment previously published and concerns the interpretation of s7E and I suppose also to some degree s 7A of the Motor Accidents Compensation Act1999 (NSW) and the extent to which, if any, a driver in what might otherwise be considered to be a “blameless motor accident” can avail themselves of the provisions allowing for deemed fault on the part of the owner of the vehicle that they were driving.

3. As was put to me by Senior Counsel on both sides, the matter has not previously been subject of a decision of this or any higher court. There is also a decision of the Court of Appeal called Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36, which the defendant contends is wrongly decided, a position that may receive some comfort in the remarks made by a differently constituted Court of Appeal in the case of Davis v Swift [2014] NSWCA 458, and possibly some obiter remarks in a case of Mamo v Surace [2014] NSWCA 58.

4. After delivering judgment I allowed the parties a week or so to consider the most appropriate and efficient course for the future conduct of the proceedings. I am concerned not to increase the cost by fracturing the proceedings and splitting the issues of liability and damages, but I have been persuaded this morning that this is an appropriate case in which to allow the defendant to prosecute an appeal in the Court of Appeal before determining the question of quantum.

5. I accept that that is an unusual course, and possibly should be reserved for exceptional cases. If that is the test, and in any event, I am satisfied that the circumstances here are exceptional. I come to that conclusion for two main reasons. The first is that the parties have at all times, in an attempt to minimise the legal costs, focussed on the issue of liability and are not prepared to argue or adduce evidence on the issue of damages. I am told that the parties would need something in the order of nine to 12 months to obtain the necessary medical evidence that would go to that question. I have to say that surprises me, but I accept it from people who have more experience than I do in such matters. By that time, one would expect that the Court of Appeal would have at the very least heard the matter, assuming that the Court grants leave for the matter to be argued.

6. Perhaps of more significance is that I am told (and I accept) that there are a number of cases in the pipeline which raise precisely the same issue. I have been informed this morning by Mr Jones, who initially appeared for the defendant, that he has had enquiries on behalf of various insurers as to what process would follow the judgment I delivered last week. Those insurers having a particular interest in the outcome of this point of law.

7. It would be false economy I think simply to proceed in this matter to determine the question of damages. I had encouraged the parties to reach agreement on that subject but I am told that they remain very far apart. The false economy would arise because of the fact that many other cases would be heard by individual judges of this Court, and the District Court, when ultimately a case at some point is going to have to get to the Court of Appeal for determination of this particular point of law, assuming the Parliament does not see fit to make the legislation clear.

8. For those reasons, I am persuaded that the joint position taken by the parties is correct, and that I should maintain the separation of the issue of liability from the quantification of damages. This will allow the defendant to exercise its right to seek leave to appeal from the judgment published on 4 December 2015. I will adjourn the matter into next year either for mention or directions. I can see no point in doing that before April, given the list in the Court of Appeal, and what I have now been told by Dr Rewell (who later appeared for the defendant this morning) is the likely timetable in that court.

9. So the matter is adjourned for mention or directions on Tuesday 26 April 2016. The parties have liberty to approach my Associate if there is any need for the matter to come back before me before that, and also to approach her if it is considered that a mention on that day will simply be a waste of resources, whereupon I will make orders in chambers accordingly.

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Decision last updated: 17 December 2015