Puerto v O'Neile

[2014] NSWSC 263

Supreme Court

New South Wales

Medium Neutral Citation:	Puerto v O'Neile [2014] NSWSC 263
Hearing dates:	14 March 2014
Decision date:	18 March 2014
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	The plaintiff's motion is dismissed.
Catchwords:	PROCEDURE - notice of motion - order seeking adjournment of hearing - order seeking cross-claim to be determined prior hearing of claim - order opposed - motion dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Alfredo Puerto by his tutor Emma Puerto (Plaintiff) Lauren O'Neile (First Defendant) Anthdean Pty Ltd t/as PRD Nationwide Newhouse Power (ACN 126 741 553) (Second Defendant) QBE Insurance (Australia) Limited (Cross-Defendant)
Representation:	Counsel: Mr Graham SC (Plaintiff) Mr Purdy (First Plaintiff) Mr Roberts SC (Second Defendant/Cross-Claimant) Solicitors: PK Simpson & Co (Plaintiff) Sparke Helmore Lawyers (First Defendant) Eakin McCaffery Cox (Second Defendant/Cross-Claimant) Mr Einfeld, solicitor Lander & Rogers (Cross-Defendant)
File Number(s):	2011/376560
Publication restriction:	None

Judgment

1. These proceedings were commenced by the plaintiff's tutor by statement of claim filed in November 2011. He was a removalist who was seriously injured in 2008 when he fell from a first floor balcony, sustaining brain damage, when a balustrade collapsed while he was moving a bookshelf. These proceedings were brought against the first defendant, the landlord of the premises and the second defendant, a real estate agent

1. QBE was the second defendant's insurer. The second defendant brought a cross-claim against it in February 2013. That claim is defended.

1. The matter is listed for hearing for 10 days commencing 5 May. By motion filed on 6 March the plaintiff sought an order that the hearing be adjourned and that the cross-claim be determined prior to the hearing of his claim. It was assessed that such a hearing would take some 3 days. The other parties opposed that order.

1. The motion was supported by an affidavit sworn by the plaintiff's solicitor Mr Kambas, who deposed that the plaintiff was a severely injured man with few financial resources; that there had been two unsuccessful attempts to settle the matter, the most recent at a mediation in February; that it was his view that a significant bar to the settlement was the indemnity issuing lying between the second defendant and QBE; that if that dispute were heard and determined, there would be real prosects of the plaintiff's case being settled; and that without such determination, no money offer was likely to be made to him.

1. Mr Kambas was not cross-examined, but his views were not accepted by the other parties.

1. There is no question as to the Court's discretion to make the orders sought under s 62 of the Civil Procedure Act 2005 (NSW) and Rule 28.2 of the Uniform Civil Procedure Rules 2005, notwithstanding the lateness of the application and that the usual course is for all issues in dispute to be resolved together. The contested motion must be resolved in light of the overriding purpose specified in s 56 of the Civil Procedure Act, the just, quick and cheap resolution of the real issues in the proceedings.

1. Also necessary to be considered is what is provided in s 57:

"57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."

1. The Court must act in accordance with the dictates of justice (s 58) and must have regard to:

"(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case."

1. The need for elimination of delay (s 59) and proportionality of costs (s 60), must also be borne in mind.

1. While it would undoubtedly be preferable if the parties were able to resolve their differences, in my view, the above considerations dictate that the plaintiff's application be refused.

1. Not only would the course which the plaintiff now prefers, not guarantee that any offer which he would accept will be made to him, what is proposed will inevitably delay the final resolution of these proceedings, and increase costs, if a settlement is not arrived at. That is by no means certain.

1. The procedural history of the matter included orders made in 2013 which contemplated the separate determination of the cross-claim. Those orders were vacated by consent in July, when the second defendant no longer wished to pursue that course. Its position has not altered in the meantime, despite what transpired in the settlement negotiations. It and the other parties all oppose the alteration in course which is now belatedly pursued by the plaintiff.

1. When all of this is considered together with the fact that the availability of two witnesses who will be called to give evidence relevant to both the plaintiff's claim and the indemnity dispute, will be in issue, the conclusion that justice demands that the plaintiff's motion be refused, notwithstanding his very unfortunate circumstances, becomes irresistible.

1. For these reasons the motion must be dismissed. The usual order as to costs is that they follow the event, which in this case would be that the plaintiff bear the other parties' costs of the motion, as agreed or assessed. Unless the parties approach to be heard within 14 days, that will be the Court's order.

Order

1. The plaintiff's motion is dismissed.

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Decision last updated: 18 March 2014