Pomare v Hogan
[2018] NSWSC 1596
•22 October 2018
Supreme Court
New South Wales
Medium Neutral Citation: Pomare v Hogan [2018] NSWSC 1596 Hearing dates: 22 October 2018 Decision date: 22 October 2018 Jurisdiction: Common Law Before: Adamson J Decision: (1) Direct the second defendant to serve a draft notice to answer interrogatories on the plaintiff by 5 November 2018;
(2) Direct the second defendant to serve a draft list of categories for discovery by 5 November 2018;
(3) Direct the plaintiff to notify the second defendant by 19 November 2018 of any objection to any of the draft interrogatories or categories for discovery;
(4) Stand the matter over for further directions and mention of the plaintiff’s notice of motion before me at 9.15am on 7 December 2018.
(5) Reserve the costs of today.Catchwords: PRACTICE AND PROCEDURE – whether separate question ought be ordered – second defendant admits liability subject to limitation defence – question not yet formulated – directions made Legislation Cited: Limitation Act 1969 (NSW)
Motor Accidents Compensation Act 1999 (NSW), s 7A
Uniform Civil Procedure Rules 2005 (NSW), r 28.1Cases Cited: Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 Category: Procedural and other rulings Parties: Kereopa Pomare (Plaintiff)
Michael John Hogan (First Defendant)
Angus Whyte (Second Defendant)Representation: Counsel:
Solicitors:
A Stone SC (Plaintiff)
N Jessop (First Defendant)
A Bowen (Second Defendant)
Maurice Blackburn Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Curwoods Lawyers (Second Defendant)
File Number(s): 2016/110332
Judgment – EX TEMPORE
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By notice of motion filed on 1 August 2018, the plaintiff seeks an order that the matter be listed for a separate and early hearing on the issue of the limitation defence raised by the second defendant and associated orders.
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This case concerns a collision which occurred on 18 April 2012 between a truck driven by the first defendant and an Angus bull owned by the second defendant. The plaintiff was a passenger who was asleep in the back of the truck.
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On 11 April 2016 the plaintiff commenced proceedings against the first defendant by filing a statement of claim in the District Court in which she alleged that the accident was a “blameless accident” within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW). In his defence filed on 19 December 2016, the first defendant denied that the accident was a blameless accident and alleged that the accident was caused by another person. Among the persons alleged to be at fault, the first defendant named the second defendant as having been at fault for leaving his gate open. On 15 May 2017 the plaintiff filed an amended statement of claim joining the second defendant. The second defendant has admitted liability (by admitting breach of duty of care and causation) and pleaded a defence under the Limitation Act 1969 (NSW).
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The plaintiff seeks to have the limitation question separately determined in advance of the hearing. Mr Stone SC, who appeared on behalf of the plaintiff, submitted that determination of the limitation question would be likely to result in the resolution of the proceedings. He submitted that if the limitation question is determined in the second defendant's favour, the second defendant will be out of the proceedings, thereby potentially leading to resolution against the first defendant; whereas if the second defendant is unsuccessful on the separate question, then the matter is also more likely to resolve, the second defendant having admitted liability for the injuries sustained by the plaintiff in the accident.
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I have heard evidence and submissions on the motion, and it seems to me that there is much to be said in favour of the determination of a separate question in the present case. The early determination may enhance the prospects of settlement. The determination of the separate question is likely to take no more than two days whereas the assessment of damages is likely to take longer. Although the plaintiff may need to give evidence on two separate occasions, the content of that evidence is unlikely to involve repetition. The matters against ordering a separate question include that the judge hearing the separate question could not be the same judge as the judge hearing the trial if, as may occur, findings of credit are made in respect of the evidence of the plaintiff, or any other witness who will also be called at trial: for a summary of the general principles see Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
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The plaintiff's motion does not sufficiently articulate a separate question for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 28.1. It is imperative that the question or questions for separate determination are articulated precisely. This has not yet been done. In addition, I am persuaded by Mr Bowen, who appeared on behalf of the second defendant, that there are procedural steps, including issuing subpoenas and seeking discovery and interrogatories, which I am satisfied the second defendant should have the opportunity of taking before a determination of whether an order for a separate question of an, as yet unformulated question, is made.
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For these reasons, I propose to stand over the plaintiff's notice of motion for mention before me. I will also make directions for the further conduct of this aspect of the proceedings and hope that by the next date the parties will be in a position to put before me any issues relating to those procedural steps for resolution and determination by me on that morning, if time permits.
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I make the following directions:
Direct the second defendant to serve a draft notice to answer interrogatories on the plaintiff by 5 November 2018;
Direct the second defendant to serve a draft list of categories for discovery by 5 November 2018;
Direct the plaintiff to notify the second defendant by 19 November 2018 of any objection to any of the draft interrogatories or categories for discovery;
Stand the matter over for further directions and mention of the plaintiff’s notice of motion before me at 9.15am on 7 December 2018.
I reserve the costs of today.
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Decision last updated: 23 October 2018
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