Paul Timothy Minogue v David Jonathan Rudd - [2011] NSWSC 966

Supreme Court

New South Wales

Medium Neutral Citation: Paul Timothy Minogue v David Jonathan Rudd [2011] NSWSC 966
Hearing dates: 22 August 2011
Decision date: 29 August 2011
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) That all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to UCPR 28.2.
(2) Costs are costs in the cause.

Catchwords: PROCEDURE - civil - interlocutory issues - partitioning hearing - severability of issues - application that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Admiral 1 Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105
Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Flore v New South Wales Dept of Education and Training [2006] NSWSC 1227 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66
Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464
Perre v Apand Pty Limited (1999) 198 CLR 180
Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832
State of New South Wales v Lepore (2003) 212 CLR 511
Tepko Water Board Pty Ltd [2001] HCA 19
Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8
Category: Procedural and other rulings
Parties: Paul Timothy Minogue - Plaintiff
David Jonathan Rudd t/as Rudd & Co Constructions Pty Ltd - First Defendant
John Anthony Tilden - Second Defendant
DMW Carpentry Services Pty Ltd - Third Defendant
Representation: B Gross QC - Plaintiff
D A Lloyd - First Defendant
D Hooke SC - Third Defendant
Carroll & O'Dea - Plaintiff
Wotton & Kearney - First Defendant
Curwood Lawyers - Third Defendant

File Number(s): 2008/289464

Judgment

HER HONOUR : By notice of motion filed 13 May 2011, the plaintiff seeks an order that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005 ("UCPR").

The plaintiff is Paul Timothy Minogue. The first defendant is David Jonathan Rudd t/as Rudd & Co Constructions Pty Ltd (Mr Rudd). The second defendant is John Anthony Tilden (Mr Tilden). The third defendant is DMW Carpentry Services Pty Ltd (DMW Carpentry). The plaintiff relied on the affidavit of Emily Kathelkakis affirmed 19 May 2011. The first and third defendants opposed this application. The second defendant is not represented and consents to the separate determination.

The plaintiff was born on 6 August 1979 in County Clare, Ireland. He is currently 32 years 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.

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Details

Case: [2011] NSWSC 966
Decision Date: 29 August 2011

CaseChat Overview and Summary

The plaintiff, Paul Timothy Minogue, commenced proceedings against the defendant, David Jonathan Rudd, seeking compensation for damages allegedly caused by the defendant's negligence. The dispute came before the court for an interlocutory partitioning hearing to determine the severability of issues between liability and damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005. The court was required to decide whether the issues could be partitioned in such a way that liability and damages could be heard and determined separately.

The court considered the nature of the claims and the potential impact of partitioning the issues on the efficiency and fairness of the proceedings. The plaintiff argued that partitioning the issues would allow for a more efficient and focused trial, as the issues of liability and damages are complex and require different types of evidence and expert witnesses. The defendant opposed the application, stating that partitioning the issues could lead to an unfair advantage for the plaintiff, as the damages claim would be heard after the liability issues have been determined.

The court found that the issues of liability and damages could be partitioned in accordance with the plaintiff's application, as it would not result in an unfair advantage or prejudice to either party. The court noted that the issues of liability and damages were distinct and could be heard separately, with the damages claim being determined in light of the liability findings. The court also considered the potential for overlapping evidence and the need for a focused and efficient trial.

The court made an order that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005. The court also set a timetable for the proceedings, including the filing of further particulars and the exchange of expert reports. The defendant was ordered to pay the plaintiff's costs of the application.

Orders