Nettleton v Rondeau - [2013] NSWSC 1321

Supreme Court

New South Wales

Medium Neutral Citation: Nettleton v Rondeau [2013] NSWSC 1321
Hearing dates: 29 August 2013
Decision date: 29 August 2013
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) Pursuant to rule 28.2 of the Uniform Civil Procedure Rules, the question of liability be separately determined from the question of damages.
(2) Costs of the application are costs in the cause.

Catchwords: PROCEDURE - application under 28.2 UCPR for separate determination of liability and damages - plaintiff sustained complete paraplegia to the T10 spinal cord level - plaintiff's injuries sustained 19 months before the hearing date of the application rendering uncertain his future employment prospects - in particular, uncertainty as to whether plaintiff will continue in post-accident employment - no suggestion of overlap of issues or of evidence - whether practical and proper course for issues to be separately determined - no countervailing circumstances against severance - application granted
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules, r 28(2)
Cases Cited: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Hawkins v New Mendp Engineering Limited [1963] 3 All ER 228
Idoport v National Australia Bank Ltd [2000] NSWSC 1215
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McKenzie v Downing [2008] NSWSC 69
Perre v Apand Pty Ltd (1999) 198 CLR 180
Category: Interlocutory applications
Parties: Bruce Nettleton (Plaintiff)
Jocelyn Germaine Rondeau (Defendant)
Representation: Counsel:
AS Morrison SC (Plaintiff)
J Guihot (Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2012/308746

Judgment

HIS HONOUR: These proceedings were commenced by way of Statement of Claim, and the plaintiff now proceeds by way of Amended Statement of Claim filed 29 November 2012, in which he claims damages in respect of a motor vehicle accident, said to have occurred on 14 January 2012 while the plaintiff was cycling, and involving another motor vehicle.

The judgment is sought by the plaintiff on two alternative bases. As is made plain in the Amended Statement of Claim, the application, or determination, has been brought by way of notice of motion on behalf of the plaintiff filed 26 June 2013, in which an order is sought under rule 28.2 of the UCPR that the question of liability be separately determined from the question of damages.

In support of that application reliance is placed upon the plaintiff's affidavit, affirmed on 28 August 2013, and the affidavit of Mr Thomas Goodcamp, solicitor, affirmed on 28 August 2013. The defendant has relied upon the affidavit of Michelle Landers, solicitor, sworn on 19 July 2013.

It is, briefly, necessary to record some of the factual matters.

The plaintiff, at the time of his accident, was employed by ANZ Banking Corporation, in the role of Global Head of the ANZ Corporate Advisory Business, described by the plaintiff in his affidavit as an extremely high pressure job which required clear thinking and an ability to make important decisions. It's clear that he was a very well paid employee at the time of…

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 Nettleton v Rondeau

Details

AGLC: Nettleton v Rondeau [2013] NSWSC 1321
Case: [2013] NSWSC 1321
Decision Date: 29 August 2013

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Nettleton, under rule 28.2 of the Uniform Civil Procedure Rules (UCPR) to determine the issue of liability and damages separately. Nettleton sustained complete paraplegia to the T10 spinal cord level and the injuries were sustained 19 months before the hearing date of the application. The application was made due to the uncertainty of Nettleton's future employment prospects, in particular, whether he would continue in his post-accident employment. The court was required to determine whether it was practical and proper for the issues of liability and damages to be separately determined and whether there were any countervailing circumstances against severance.

The court considered that there was no suggestion of an overlap of issues or evidence. The court noted that Nettleton's future employment prospects were uncertain, and it was uncertain whether Nettleton would continue in his post-accident employment. The court found that there were no countervailing circumstances against severance and that it was practical and proper for the issues of liability and damages to be separately determined. The court granted the application.

As a result of the court's decision, the issues of liability and damages will be determined separately. The final orders of the court were not provided in the text.

Orders