Rindfleish v Agrigrain Pty Limited

[2023] NSWDC 451

District Court

New South Wales

Medium Neutral Citation:

Rindfleish v Agrigrain Pty Limited [2023] NSWDC 451

Hearing dates:

12 October 2023

Date of orders:

12 October 2023

Decision date:

12 October 2023

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 29 September 2023:

1. The Notice of Motion is listed before the trial judge on 25 October 2023 at 10am for hearing.

2. The costs of 12 October 2023 are reserved.

Catchwords:

PRACTICE AND PROCEDURE – whether factually complex Notice of Motion seeking relief including final relief should be adjourned for consideration by the trial judge

Legislation Cited:

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Category:

Procedural rulings

Parties:

Ian Rindfleish (Plaintiff)
Agrigrain Pty Limited (Defendant)

Representation:

Counsel:
B Williams
D Fernandez (Solicitor)

Solicitors:
Slater and Gordon (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2022/00070861

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 29 September 2023 by the defendant seeking a variety of relief including:

1. Orders that the proceedings be dismissed;

in the alternative,

2. An order that the Statement of Claim be struck out;

in the alternative,

3. the determination of separate questions, including whether the plaintiff's claim being a claim for personal injury damages arises out of and in the course of employment within the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW);

4. Whether the proceedings are maintainable in the light of alleged limitation issues; and

5. Orders for specific discovery.

2. When the matter was first mentioned, I raised with counsel, including counsel appearing for the applicant/defendant, the limited availability of judges to hear the matter on the desired date of 17 October 2023 and the nature of the relief sought in the Motion in the light of the upcoming final hearing commencing on 25 October 2023.

3. The relief sought in the Notice of Motion in substance involves factually intensive matters.  The Notice of Motion was filed on 29 September 2023. 

4. Ms Fernandez, who appears for the defendant, indicated from the bar table that it was following the receipt of advice from counsel following discovery that the Notice of Motion was filed.  I have no reason to doubt that, but it is a very late application. 

5. Mr Williams, who appears for the plaintiff, submitted that the matters in the Motion were appropriate matters for the trial judge.  I agree with that submission. 

6. The relief sought in the Motion requires an understanding by a judge of the accident and the persons who allegedly were involved, in the sense of the corporate entities, and who the plaintiff was employed by, to determine a number of the issues.  There is clear appellate authority at the highest level that limitation issues should in general not be determined prior to the final hearing.

7. It seems to me that the most efficient way to deal with the matter in the circumstances, where a number of factual matters need to be determined if the Motion is heard, is to adjourn the hearing of the Notice of Motion to the trial.  The trial date is only a fortnight away.  At present, it is not convenient for the Court to hear the matter on 17 October 2023.  The nature of the application could involve at least a day's hearing and it is possible that a judge could reserve on the number of complex issues raised. Therefore, any judgment may not be handed down by the trial date even with the best will.  In those circumstances, in my view the only appropriate way to deal with the Motion, consistently with the interests of justice and to avoid unnecessary expenditure, is to adjourn the Notice of Motion to be heard at the trial.

8. It may be, although it is a matter for the trial judge, that the trial judge forms the view that issues of liability should be dealt with first.  In those circumstances, where the accident was alleged to have involved a serious injury, it may be that a similar amount of time would be involved in dealing with the factual issues as would be involved in considering the liability issues.  Further, even if that is not the case, if a trial judge decides not to deal with liability except as part of a full hearing, then the time would not be wasted.

9. For all of those reasons, I am of the view that the Notice of Motion should be adjourned for hearing to the trial judge. Accordingly, I make the orders which I indicated to that effect.

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Decision last updated: 25 October 2023