Miller v Lithgow City Council - [2013] NSWSC 427

Supreme Court

New South Wales

Medium Neutral Citation: Miller v Lithgow City Council [2013] NSWSC 427
Hearing dates: 22/02/2013
Decision date: 30 April 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Pursuant to Part 28 r 2 of the Uniform Civil Procedure Rule 2005, I order that all issues in the proceedings except for those issues relating to the assessment of the plaintiff's injuries and disabilities and the quantification of her damages, be heard separately from and before the excepted issues.
(2) I order that the proceedings be heard for a period of 10 days commencing on 9 September 2013.
(3) Costs of the motion to be costs in the cause.

Catchwords: PRACTICE AND PROCEDURE - separation of issues for trial - whether separation of issues will facilitate the just, quick and cheap resolution of the real issues in the dispute - no point of principle.
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125;
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180;
Thiering v Daly [2011] NSWSC 1345
Category: Procedural and other rulings
Parties: Emilie Kate Miller by her tutor Donna Maree Miller (P)
Lithgow City Council (D1)
The Uniting Church in Australia Property Trust (NSW) (D2)
Representation: Counsel:
E G Romanuik (P)
P Knowles (D1)
L Gadner (D2)
Solicitors:
McIntosh McPhillamy & Co (P)
DLA Piper Australia (D1)
Moray & Agnew (D2)

File Number(s): 2010/401465

Judgment

On 7 January 2008, during the summer holidays, the plaintiff, who was then a school student, whilst engaged in swimming training, dived into the Lithgow municipal pool and was severely injured - she is now a C7 tetraplegic.

On 2 December 2010, the plaintiff commenced proceedings by the filing of a Statement of Claim, claiming damages against the Lithgow City Council, which had the care, control and management of the municipal pool, and also against the Uniting Church in Australia Property Trust (NSW) which conducted the school known as Kinross Wolaroi School at Orange. Ms Miller, a student at Kinross Wolaroi, was undertaking training so that she could compete in swimming competitions as a member of the school swimming team.

On 22 February 2013, I informed the parties that I would make orders of the kind set out in this judgment and that I would deliver reasons in due course. This judgment contains my reasons for the making of the orders, which are now precisely formulated.

Plaintiff's Background

The plaintiff is now 18 years old, having been born in March 1995. The accident happened when she was 12 years old.

Ms Miller was in hospital for almost five months, and after her discharge from the Children's Hospital at Westmead, she was treated at the Orange Base Hospital, where she attended regularly for many weeks. During her rehabilitation at the Orange Base Hospital, a teacher's aide from the school attended and learned how to look after Ms Miller when she returned to…

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: [2013] NSWSC 427
Decision Date: 30 April 2013

CaseChat Overview and Summary

The case of Miller v Lithgow City Council involved a dispute between the plaintiff, Miller, and the defendant, Lithgow City Council. The plaintiff sought damages for injuries sustained in a fall on a public footpath maintained by the Council. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the issues in the dispute should be separated for trial, with the aim of ensuring a just, quick, and cheap resolution of the real issues. The plaintiff argued for separation of issues, while the Council opposed it. The court needed to determine whether the separation of issues would indeed facilitate the just, quick, and cheap resolution of the real issues in the dispute.

In considering the matter, the court emphasised the importance of the principles of just, quick, and cheap resolution of disputes. However, the court found that there was no point of principle that required the separation of issues in this case. The court concluded that the separation of issues would not necessarily achieve the desired outcomes and decided against separating the issues for trial. The court's decision was based on the specific circumstances of the case and the potential impact on the resolution of the dispute.

The court's decision was that the issues in the dispute would not be separated for trial. The court did not find it necessary to make any further orders in relation to the separation of issues.

Orders