Pan v Kuhn - [2011] NSWDC 8

District Court

New South Wales

Medium Neutral Citation: Pan v Kuhn [2011] NSWDC 8
Hearing dates: 7 March 2011
Decision date: 08 March 2011
Before: Levy SC DCJ
Decision:
The application by the defendant to vacate the hearing date is refused. The hearing is to proceed on the appointed dates, 24 and 25 March 2011.

Catchwords: PRACTICE AND PROCEDURE - untimely application to vacate the hearing date - claimed entitlement to seek medical reassessment pursuant to s 62(1)(a) of Motor Accidents Compensation Act 1999 - result of earlier tactical decision not disclosed to opponent - procedural consequences
Legislation Cited: Civil Procedure Act 2005, ss 56-58
Motor Accidents Compensation Act 1999, s 62(1)(a)
Cases Cited: Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346
Singh v Motor Accidents Authority of NSW [2010] NSWSC 1443
White v Overland [2001] FCA 1333
Category: Interlocutory applications
Parties: Ying Pan (Plaintiff)
Brendan Kenneth Kuhn (Defendant)
Representation: Counsel:
Mr K Andrews (Plaintiff)
Mr R O'Keefe (Defendant)
Solicitors:
Wyatt Attorneys (Plaintiff)
George Mallos (Defendant)

File Number(s): 2009/338785

Judgment

Application

By notice of motion filed on 24 February 2011, the applicant defendant seeks to vacate the hearing dates allocated to these proceedings. A final hearing is scheduled to proceed on 24 and 25 March 2011. The substantive ground for the application, which is opposed, is that the applicant defendant wishes to pursue an application for an administrative re-assessment of the plaintiff's medical condition by the Medical Assessment Service ["MAS"] in a claim made under the Motor Accidents Compensation Act 1999 [ "MAC Act" ], pursuant to s 62(1)(a) of that Act.

Evidence on the application

In support of the motion the applicant defendant relies upon two affidavits from his solicitor, George John Mallos, respectively sworn on 24 February 2011 and 7 March 2011, with the exhibited materials marked "GJM-1" and "GJM-2". The respondent plaintiff relies upon the affidavit of her solicitor, Julie Maree Wyatt, sworn on 3 March 2011, and which incorporates voluminous annexures. The deponents were not required to give oral evidence. The application required the consideration of several hundred pages of materials that were exhibited to the respective affidavits, setting out relevant events, correspondence, assessments, medical reports and related matters.

Issues

Three relevant issues emerged on the application, first whether in reality, new material or, to use the language of the statute, " additional relevant information about the injury " has emerged which legitimately calls for a MAS re-assessment pursuant to s 62(1)(a) of the MAC Act , secondly , whether the applicant defendant has provided a satisfactory explanation for the delay in bringing the application so as to justify the order sought, and thirdly , complaints by the applicant defendant as to the state of the…

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: [2011] NSWDC 8
Decision Date: 08 March 2011

CaseChat Overview and Summary

In the case of Pan v Kuhn, the parties involved were the plaintiff, Pan, and the defendant, Kuhn. The dispute centred on an untimely application by the defendant to vacate the hearing date, which was predicated on the defendant's claim that they were entitled to seek a medical reassessment under section 62(1)(a) of the Motor Accidents Compensation Act 1999. This entitlement was purportedly the result of a tactical decision that was not disclosed to the opposing party. The case was heard in the District Court of Queensland. The central legal issue before the court was whether the defendant's application to vacate the hearing date was justified given the circumstances surrounding the belated claim for medical reassessment.

The court meticulously examined the nature and timing of the defendant's application, the reasons provided for the delay, and the implications of the procedural misstep on the fairness and integrity of the litigation process. It was noted that the defendant had elected not to pursue a medical reassessment earlier, which could have been influenced by tactical considerations that were not communicated to the plaintiff. The court found that the application was not only untimely but also lacked sufficient justification to warrant a departure from the scheduled hearing date. Moreover, the court held that the defendant's failure to disclose the tactical decision was a significant factor in the unacceptability of the application.

Ultimately, the court concluded that the defendant's application to vacate the hearing date was not meritorious and refused the application. The judge ordered that the hearing would proceed as scheduled on 24 and 25 March 2011, emphasizing the importance of adhering to procedural timelines and the necessity of full disclosure in legal proceedings. This decision underscores the principle that parties must manage their litigation strategies responsibly and transparently to uphold the fairness of the judicial process.

Orders

Orders of the court

The application by the defendant to vacate the hearing date is refused. The hearing is to proceed on the appointed dates, 24 and 25 March 2011.

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:	Pan v Kuhn [2011] NSWDC 8
Hearing dates:	7 March 2011
Decision date:	08 March 2011
Before:	Levy SC DCJ
Decision:	The application by the defendant to vacate the hearing date is refused. The hearing is to proceed on the appointed dates, 24 and 25 March 2011.
Catchwords:	PRACTICE AND PROCEDURE - untimely application to vacate the hearing date - claimed entitlement to seek medical reassessment pursuant to s 62(1)(a) of Motor Accidents Compensation Act 1999 - result of earlier tactical decision not disclosed to opponent - procedural consequences
Legislation Cited:	Civil Procedure Act 2005, ss 56-58 Motor Accidents Compensation Act 1999, s 62(1)(a)
Cases Cited:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346 Singh v Motor Accidents Authority of NSW [2010] NSWSC 1443 White v Overland [2001] FCA 1333
Category:	Interlocutory applications
Parties:	Ying Pan (Plaintiff) Brendan Kenneth Kuhn (Defendant)
Representation:	Counsel: Mr K Andrews (Plaintiff) Mr R O'Keefe (Defendant) Solicitors: Wyatt Attorneys (Plaintiff) George Mallos (Defendant)
File Number(s):	2009/338785