Neskovic v Beydoun - [2018] NSWDC 379

District Court

New South Wales

Medium Neutral Citation: Neskovic v Beydoun [2018] NSWDC 379
Hearing dates: 17 October 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant’s notice of motion granted; these proceedings stayed until further order pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant’s request to undergo a FIM Assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme.
(2) Liberty to apply on three (3) days’ notice in relation to order 1 above.
(3) These proceedings placed in the Inactive List until further order (with a review date of 13 December 2018).
(4) Plaintiff pay defendant’s costs.

Catchwords: MOTOR VEHICLE – plaintiff commences proceedings for personal injury following motor vehicle accident – defendant seeks a stay of proceedings pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) on the basis of the plaintiff’s refusal to comply with the defendant’s request to undergo a FIM assessment for the purpose of determining his eligibility for participation in the Lifetime Care and Support Scheme – whether stay should be granted – import of the word “must” in s 86(1) – stay granted
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Motor Accidents Compensation Act 1999 (NSW), s 86
Cases Cited: Adilzada v The Nominal Defendant [2016] NSWDC 24
Allianz Australia Insurance Ltd v Ridge [2018] NSWSC 1239
Daly v Thiering (2013) 249 CLR 381
Mahommed v Unicomb [2017] NSWCA 65
Nominal Defendant v Adilzada [2016] NSWCA 266
Category: Procedural and other rulings
Parties: Plaintiff: Zoran Neskovic
Defendant: Ahmad Beydoun
Representation:
Counsel:
Plaintiff: Mr M Daley
Defendant: Mr J Sewell
Solicitors:
Plaintiff: TK Legal
Defendant: Sparke Helmore Lawyers

File Number(s): 2017/351755
Publication restriction: None

Judgment

The defendant by notice of motion filed 19 July 2018 seeks orders as follows:

That the proceedings be stayed pursuant to s 86(4) of the Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant’s request to undergo a FIM assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme (“the Scheme”).

That the plaintiff pay the defendant’s costs of and incidental to this notice of motion.

Any other order that this Court deems fit.

The defendant relies upon two affidavits of Greer Stening sworn on 19 July and 12 October 2018, which are Exhibits A and B. I have also had the benefit of reading the affidavit of Toya Kha sworn on 24 August 2018 which is relied upon by the plaintiff.
The relevant legislation is s 86 Motor Accidents Compensation Act 1999 (NSW), which provides:

“86 Medical and other examination of claimant
(1) A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:
(a) to undergo a medical examination by one or more medical practitioners…

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 Neskovic v Beydoun

Details

AGLC: Neskovic v Beydoun [2018] NSWDC 379
Case: [2018] NSWDC 379
Decision Date: 17 October 2018

CaseChat Overview and Summary

The case of Neskovic v Beydoun involved a plaintiff who initiated proceedings for personal injuries sustained in a motor vehicle accident. The defendant moved for a stay of the proceedings under section 86(4) of the Motor Accidents Compensation Act 1999 (NSW) because the plaintiff had refused to comply with the defendant's request to undergo a Functional Independence Measure (FIM) assessment, which was necessary to determine the plaintiff's eligibility for participation in the Lifetime Care and Support Scheme. The court was required to decide whether the stay should be granted in light of the plaintiff's refusal to comply with the defendant's request to undergo a FIM assessment.

The court considered the wording of section 86(1) of the Act, which uses the word "must" in relation to the requirement for a person to comply with a request to undergo an assessment. The court determined that the statutory language indicated a mandatory obligation, and the plaintiff's failure to comply with the defendant's request constituted a breach of this obligation. As a result, the court granted the defendant's motion for a stay of the proceedings. The court also ordered that the proceedings be placed on the Inactive List, with a review date set for 13 December 2018, and that the plaintiff pay the defendant's costs.

In granting the stay, the court emphasised the importance of compliance with the statutory requirements for participation in the Lifetime Care and Support Scheme. The court held that the plaintiff's refusal to undergo the FIM assessment was a material factor in determining whether a stay should be granted. The court also noted that the plaintiff had the right to apply for a review of the stay order on three days' notice, providing an opportunity for the plaintiff to demonstrate compliance with the defendant's request or to challenge the validity of the stay order.

Orders

Orders of the court

(1) Defendant’s notice of motion granted; these proceedings stayed until further order pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant’s request to undergo a FIM Assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme.

(2) Liberty to apply on three (3) days’ notice in relation to order 1 above.

(3) These proceedings placed in the Inactive List until further order (with a review date of 13 December 2018).

(4) Plaintiff pay defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Neskovic v Beydoun [2018] NSWDC 379
Hearing dates:	17 October 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s notice of motion granted; these proceedings stayed until further order pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant’s request to undergo a FIM Assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme. (2) Liberty to apply on three (3) days’ notice in relation to order 1 above. (3) These proceedings placed in the Inactive List until further order (with a review date of 13 December 2018). (4) Plaintiff pay defendant’s costs.
Catchwords:	MOTOR VEHICLE – plaintiff commences proceedings for personal injury following motor vehicle accident – defendant seeks a stay of proceedings pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) on the basis of the plaintiff’s refusal to comply with the defendant’s request to undergo a FIM assessment for the purpose of determining his eligibility for participation in the Lifetime Care and Support Scheme – whether stay should be granted – import of the word “must” in s 86(1) – stay granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Motor Accidents Compensation Act 1999 (NSW), s 86
Cases Cited:	Adilzada v The Nominal Defendant [2016] NSWDC 24 Allianz Australia Insurance Ltd v Ridge [2018] NSWSC 1239 Daly v Thiering (2013) 249 CLR 381 Mahommed v Unicomb [2017] NSWCA 65 Nominal Defendant v Adilzada [2016] NSWCA 266
Category:	Procedural and other rulings
Parties:	Plaintiff: Zoran Neskovic Defendant: Ahmad Beydoun
Representation:	Counsel: Plaintiff: Mr M Daley Defendant: Mr J Sewell Solicitors: Plaintiff: TK Legal Defendant: Sparke Helmore Lawyers
File Number(s):	2017/351755
Publication restriction:	None