Rodger v De Gelder - [2012] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rodger v De Gelder [2012] NSWCA 167
Hearing dates: 23 May 2012
Decision date: 23 May 2012
Before: Beazley JA;
Tobias AJA
Decision:
1. Leave to appeal is refused;
2. The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal;
3. Dismiss the notice of motion filed 23 May 2012;
4. The applicant on the notice of motion is to pay the respondent's costs of the notice of motion and Triple M Mechanical Services' costs of the notice of motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: MOTOR VEHICLE ACCIDENT - Motor Accidents Compensation Act 1999, s 111 - further medical evidence - whether trial judge required to adjourn proceedings for further medical assessment - whether further medical evidence would have materially affected the assessment made by the Claims Assessor
Legislation Cited: Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Allianz Australia Insurance Ltd v Girgis & Ors [2011] NSWSC 1424; 59 MVR 548
Category: Principal judgment
Parties: James Norman Barr Rodger (Applicant)
Adam Roy De Gelder (Respondent)
Representation: Counsel:
K Rewell SC; W Fitzsimmons (Applicant)
P Semmler QC; A Canceri (Respondent)
S Maybury (Triple M Mechanical Services)
Solicitors:
Curwoods Lawyers (Applicant)
CMC Lawyers (Respondent)

File Number(s): 2012/165361
Decision under appeal

Citation:

Triple M Mechanical Services Pty Limited v James Norman Barr Rodger; Adam De Gelder v James Norman Barr Rodger

Date of Decision:

2012-05-22 00:00:00

Before:

Levy DCJ

File Number(s):

2010/229350; 2011/319834

Judgment

THE COURT: On 23 May 2012 at the conclusion of oral argument, the Court made the following orders:

(1)Leave to appeal is refused;

(2)The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal;

(3)Dismiss the notice of motion filed 23 May 2012;

(4)The applicant on the notice of motion is to pay the respondent's costs of the notice of motion and Triple M Mechanical Services' costs of the notice of motion.

The Court indicated that its reasons for making those orders would be provided in due course. Those reasons now follow.

The applicant, Mr Rodger, is the defendant in District Court proceedings brought by the respondent, Mr De Gelder, for damages for economic loss due to injuries he sustained in a motor vehicle accident. The insurer in Mr Rodger's interest is NRMA. In issue in the proceeding is whether crush fractures in Mr De Gelder's thoracic spine at…

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.

Continue reading Rodger v De Gelder

Details

AGLC: Rodger v De Gelder [2012] NSWCA 167
Case: [2012] NSWCA 167
Decision Date: 23 May 2012

CaseChat Overview and Summary

In *Rodger v De Gelder*, the applicant sought leave to appeal a decision of the District Court of New South Wales. The dispute concerned a motor vehicle accident and the applicant's claim for compensation under the *Motor Accidents Compensation Act 1999* (NSW). The core of the applicant's grievance was that the trial judge had allegedly erred in refusing to adjourn the proceedings to allow for further medical assessment, and that such further evidence would have materially affected the assessment made by the Claims Assessor.

The primary legal issue before the Court of Appeal was whether the trial judge had exercised their discretion wrongly in refusing an adjournment for further medical evidence. This required the court to consider the circumstances under which an adjournment should be granted, particularly when further evidence is sought in relation to a compensation claim, and the potential impact of that evidence on the assessment of damages. The court also had to determine whether the proposed further medical evidence would have been likely to materially alter the outcome of the assessment.

The Court of Appeal, comprising Beazley JA and Tobias AJA, refused leave to appeal. Their Honours reasoned that the trial judge had not erred in the exercise of their discretion. The court considered that the applicant had not demonstrated that the further medical evidence would have materially affected the assessment made by the Claims Assessor, nor that the refusal of the adjournment was otherwise unjust. The court noted that the applicant had not provided sufficient grounds to justify interfering with the trial judge's decision.

Consequently, leave to appeal was refused. The applicant was ordered to pay the respondent's costs of the summons for leave to appeal, as well as the costs of Triple M Mechanical Services in relation to that summons. The notice of motion filed on 23 May 2012 was dismissed, with the applicant on that motion ordered to pay the respondent's costs and Triple M Mechanical Services' costs of the motion.

Orders

Orders of the court

1. Leave to appeal is refused;

2. The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal;

3. Dismiss the notice of motion filed 23 May 2012;

4. The applicant on the notice of motion is to pay the respondent's costs of the notice of motion and Triple M Mechanical Services' costs of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Rodger v De Gelder [2012] NSWCA 167
Hearing dates:	23 May 2012
Decision date:	23 May 2012
Before:	Beazley JA; Tobias AJA
Decision:	1. Leave to appeal is refused; 2. The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal; 3. Dismiss the notice of motion filed 23 May 2012; 4. The applicant on the notice of motion is to pay the respondent's costs of the notice of motion and Triple M Mechanical Services' costs of the notice of motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	MOTOR VEHICLE ACCIDENT - Motor Accidents Compensation Act 1999, s 111 - further medical evidence - whether trial judge required to adjourn proceedings for further medical assessment - whether further medical evidence would have materially affected the assessment made by the Claims Assessor
Legislation Cited:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
Cases Cited:	Allianz Australia Insurance Ltd v Girgis & Ors [2011] NSWSC 1424; 59 MVR 548
Category:	Principal judgment
Parties:	James Norman Barr Rodger (Applicant) Adam Roy De Gelder (Respondent)
Representation:	Counsel: K Rewell SC; W Fitzsimmons (Applicant) P Semmler QC; A Canceri (Respondent) S Maybury (Triple M Mechanical Services) Solicitors: Curwoods Lawyers (Applicant) CMC Lawyers (Respondent)
File Number(s):	2012/165361
Decision under appeal	Citation: Triple M Mechanical Services Pty Limited v James Norman Barr Rodger; Adam De Gelder v James Norman Barr Rodger Date of Decision: 2012-05-22 00:00:00 Before: Levy DCJ File Number(s): 2010/229350; 2011/319834