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

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.
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.
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.
After delivering judgment I…

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.

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Details

Case: [2015] NSWSC 1957
Decision Date: 17 December 2015

CaseChat Overview and Summary

The case of Melenewycz v Whitfield (No 2) involved a dispute between the parties regarding the separation of issues of liability and quantification of damages. The matter was before the court to determine whether these issues should be kept separate. The disagreement arose out of a prior court decision where the issues were initially separated, but the defendant appealed against the decision regarding liability. The plaintiff argued that the issues should be kept separate to allow the defendant to appeal on the question of liability, while the defendant argued that the issues should be joined for efficiency.

The court was required to decide whether the issues of liability and quantification of damages should be kept separate or joined. The court considered whether the question of construction had been previously determined by a superior court, whether the parties were in a position to adduce evidence as to damages, and whether there were other cases pending in the Court awaiting the determination of the question of law. The court also considered the potential costs and benefits of proceeding to assess damages at that stage.

The court found that the issues should remain separated. The court determined that the question of construction had not been previously determined by a superior court and that the parties were not in a position to adduce evidence as to damages. The court also noted that there were other cases in the Court awaiting the determination of the question of law. The court concluded that it would be a false economy to proceed to assess damages at that stage. The court found in favour of the plaintiff and ordered that the issues of liability and quantification of damages should remain separated.

The court did not make any final orders in the matter as the decision was interlocutory in nature. The court's decision was focused on the separation of issues and did not address the substantive merits of the case. The court's decision was based on the specific circumstances of the case and may not be applicable in other cases with different facts and legal issues.

Orders