Mouzakzak v The Nominal Defendant - [2020] NSWDC 421

District Court

New South Wales

Medium Neutral Citation: Mouzakzak v The Nominal Defendant [2020] NSWDC 421
Hearing dates: 27-28 July 2020
Date of orders: 28 July 2020
Decision date: 28 July 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 22

Catchwords:
PRACTICE AND PROCEDURE – claim for personal injury arising from motor vehicle accident – plaintiff was passenger in vehicle at time of accident – driver of vehicle called as a witness for the plaintiff – application by plaintiff to strike out some evidence of the driver – witness cross-examined as to whether she deliberately drove to damage vehicle – absence of pleading of fraud – whether prejudice to the plaintiff

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3

Cases Cited:
Nguyen v Tran [2018] NSWCA 215

Category: Procedural and other rulings
Parties: Ms S Mouzakzak
The Nominal Defendant
Representation:
Counsel:
Mr H Marshall SC and Mr J Tryon (Plaintiff)
Mr K Rewell SC (Defendant)
Solicitors:
Prominent Lawyers (Plaintiff)
Hall & Wilcox (Defendant)

File Number(s): 2018/231550
Publication restriction: Nil

Judgment

Background

The case before me is at day 2 of its hearing. It concerns a claim for damages for personal injury as a result of a motor vehicle accident in 2016. The plaintiff was a front seat passenger in a vehicle that was being driven by the second defendant along Henry Lawson Drive in a southward direction towards Milperra. The plaintiff alleges that the car in which she was a passenger, a Mercedes Benz, was first struck by a car travelling in a northbound direction which had veered across onto the wrong side of the road. She then alleged that the driver of the Mercedes Benz, in the process of responding to the other oncoming vehicle, steered the car towards the left and caused it to depart the roadway and strike a tree. It was the impact of the car’s collision with the tree which caused her to suffer substantial injuries.
Following the accident, the driver of the other vehicle was not able to be identified. This caused the plaintiff to commence this proceeding against the Nominal Defendant, although she later joined the driver of the vehicle in which she was travelling as the second defendant. The claim against the second defendant has however settled. The second defendant, Ms Khaled, is now a witness called for the plaintiff.
The proceedings have reached a stage where the plaintiff has given her evidence and the second defendant is under cross-examination.
As I understand, there is no issue in dispute that the Mercedes Benz, driven by Ms Khaled, struck the tree. What is hotly in issue was whether the Mercedes Benz struck the tree following an earlier collision with an unidentified vehicle.
By its Defence, the Nominal Defendant expressly denied that there was such an unidentified vehicle. This, I think, effectively put the plaintiff on notice that, on the Nominal Defendant’s view, the collision with the tree occurred independently of the involvement of a third party. The Nominal Defendant…

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: [2020] NSWDC 421
Decision Date: 28 July 2020

CaseChat Overview and Summary

The matter before the court involved a claim for personal injury following a motor vehicle accident. Mouzakzak, the plaintiff, was a passenger in the vehicle when the accident occurred. The driver of the vehicle, who was called as a witness for the plaintiff, was cross-examined about whether she had deliberately driven to cause damage to the vehicle. The plaintiff subsequently applied to strike out some of the evidence given by the driver, citing the absence of any pleading of fraud in the proceedings. The central issue before the court was whether the cross-examination about the driver's alleged intent to damage the vehicle constituted an unfair prejudice to the plaintiff, particularly in the absence of any prior pleading of fraud.

The court carefully considered the nature of the cross-examination and its relevance to the plaintiff's case. It acknowledged that the driver's evidence was intended to challenge the plaintiff's version of events and to undermine the credibility of the driver's testimony. However, the court also noted that the cross-examination touched upon allegations that had not been pleaded by the plaintiff, specifically the issue of fraud. The court explored whether this constituted a significant departure from the issues as pleaded, which could potentially prejudice the plaintiff. Ultimately, the court determined that while the cross-examination may have been probing, it did not rise to the level of unfair prejudice given the overall context of the case and the relevance of the issues explored.

The court found that the cross-examination did not unfairly prejudice the plaintiff, and therefore, the application to strike out the evidence was dismissed. The court's reasoning was grounded in the principle that the scope of cross-examination should be sufficient to test the credibility of the witness and the evidence they provide, even if it touches upon matters not specifically pleaded. The court also emphasised the importance of maintaining a balance between the rights of the parties to present their cases and the need to avoid unnecessary prejudice. The court's decision ensured that the trial proceeded fairly, with both parties having the opportunity to challenge and explore the evidence relevant to the case.

The final orders of the court included the dismissal of the plaintiff's application to strike out the evidence given by the driver. The court confirmed that the evidence in question was relevant and could be considered in the context of the overall case. The proceedings were to continue with the evidence as presented, ensuring that both parties had the opportunity to fully present and challenge the evidence relevant to the claim.

Orders

Orders of the court

See paragraph 22

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mouzakzak v The Nominal Defendant [2020] NSWDC 421
Hearing dates:	27-28 July 2020
Date of orders:	28 July 2020
Decision date:	28 July 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 22
Catchwords:	PRACTICE AND PROCEDURE – claim for personal injury arising from motor vehicle accident – plaintiff was passenger in vehicle at time of accident – driver of vehicle called as a witness for the plaintiff – application by plaintiff to strike out some evidence of the driver – witness cross-examined as to whether she deliberately drove to damage vehicle – absence of pleading of fraud – whether prejudice to the plaintiff
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3
Cases Cited:	Nguyen v Tran [2018] NSWCA 215
Category:	Procedural and other rulings
Parties:	Ms S Mouzakzak The Nominal Defendant
Representation:	Counsel: Mr H Marshall SC and Mr J Tryon (Plaintiff) Mr K Rewell SC (Defendant) Solicitors: Prominent Lawyers (Plaintiff) Hall & Wilcox (Defendant)
File Number(s):	2018/231550
Publication restriction:	Nil