The Nominal Defendant v Wereta

[2000] NSWSC 678

CITATION:	The Nominal Defendant v Wereta [2000] NSWSC 678
FILE NUMBER(S):	SC 20922/1997
HEARING DATE(S):	3 July, 2000
JUDGMENT DATE:	17 July 2000
PARTIES :	The Nominal Defendant - Appellant Douglas Frederick Wereta by his tutor Joyce Wereta - Respondent
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr J Hislop QC/Mr I McGillicuddy - Appellant Mr A Bartley SC/Mr Tuscano - Respondent
SOLICITORS:	Grahame Goldberg Partners - Appellant Stacks - The Law Firm with Goudkamp Mahony - Respondent
LEGISLATION CITED:	Supreme Court Rules Motor Vehicles (Third Party Insurance) Act 1942 Motor Accidents Act 1988 Limitation Act 1969
CASES CITED:	Morrison v Judd (unreported - NSWCAA 10 October 1995)
DECISION:	Appeal is dismissed; Appellant is to pay the Respondent's costs as agreed or assessed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 17 July, 2000

20922/1997 - The Nominal Defendant v Douglas Frederick WERETA by his tutor Joyce WERETA

JUDGMENT

1    HER HONOUR: This is an appeal brought pursuant to Part 60 r 10 of the Supreme Court Rules (SCR) against the decision of Master Harrison given on 29 March 2000 dismissing the appellant’s Notice of Motion filed on 26 October 1999.

2    By its Notice of Motion the appellant sought the orders including the separate trial of certain liability issues. In support of the Notice of Motion the appellant relied on two affidavits sworn by Josephine Mary Snell on 26 October 1999 and 25 January 2000 respectively. The respondent relied on the affidavits of Ian Kenneth Chipchase sworn on 28 October 1999 and 10 December 1999. No additional evidence was tendered on the hearing of the appeal.

3 The respondent brings proceedings in negligence against the appellant pursuant to s 30(1) of the Motor Vehicles (Third Party Insurance) Act 1942. It is alleged that the respondent was a passenger in a motor vehicle driven by Lindsay Norman Willding on 16 March 1980 on the Barrier Highway between Broken Hill and Wilcannia. The motor vehicle was unregistered and uninsured. About fifteen kilometres from Wilcannia, the vehicle left the highway, overturning several times, thereby causing injury to the respondent. Lindsay Norman Willding is said to have been negligent in the conduct of the vehicle.

4    The respondent is aged fifty four years. It appears that as a result of the accident he suffered serious traumatic brain injury together with a wide range of medical complications for which he received treatment in a number of hospitals in New South Wales over the course of several admissions in 1980 and 1981. He returned to live in New Zealand in 1981. He resides in Napier where he is cared for by his mother and family.

5    There is evidence that the respondent would have great difficulty travelling to Australia in connection with these proceedings. He would require at least one attendant. It is likely that he would become confused and disoriented.

6    In the respondent’s case it is proposed to call a number of medical and other witnesses all of whom are resident in New Zealand. The respondent has filed a Notice of Motion seeking orders that a Judge of this Court be appointed an Examiner pursuant to Part 27 r 1A of the Supreme Court Rules (SCR) for the examination on oath of a number of witnesses in Napier, New Zealand. The determination of this Motion is waiting the outcome of the subject proceedings.

7    Mr Hislop QC, who appears with Mr McGillicuddy on behalf of the appellant, in the course of oral submissions contended that the Master fell into error in the following respects:

(i) She wrongly concluded that the evidence established that the full hearing of the proceedings was estimated to take two weeks;
(ii) she wrongly concluded that the whole trial might be conducted in New Zealand;
(iii) her decision not to order a separate trial on liability was unreasonable.

8    It is convenient to deal with matters (i) and (ii) together. Mr Hislop points to paragraph 14 of the Master’s reasons in which she says:

“The hearing on liability is estimated to take two days. The plaintiff’s evidence could be taken, with some difficulties, via video link. The full hearing is estimated to take two weeks and if the hearing is to be held in New Zealand, the defendant estimates it will cost between $200,000 and $250,000. The plaintiff currently has a motion on foot seeking to have evidence taken on commission in New Zealand.”

9    Mr Hislop contends that the Master wrongly concluded that the full hearing was estimated to take two weeks. In this respect he refers to the affidavit of Ian Chipchase sworn on 28 October 1999. Mr Chipchase estimates that a total of forty seven hours will be needed to take the evidence of the various witnesses (identified in paragraph 18) all of whom are resident in New Zealand. This would occupy two weeks of hearing time. No allowance is made in this estimate for other than the taking of the evidence of the respondent’s witnesses. Mr Hislop submits, by reference to the Master’s statement “if the hearing is to be in New Zealand”, in combination with her acceptance of two weeks as the estimated length of “the full hearing”, that she must be taken to have considered that the entire hearing of the matter might be conducted in New Zealand. Such a conclusion would plainly be wrong.

10    Mr Hislop points to the Master’s further observation “justice is best served if there is only one trial whether it is to be in New Zealand or Sydney” (paragraph 16) as supporting his contention that she approached the matter upon a view that the entire hearing might be conducted in New Zealand. I do not accept that the Master made such an error. I do not read her reference “one trial whether it be in New Zealand or Sydney” literally. The Master was clearly mindful of a proposal that a substantial quantity of evidence in the respondent’s case be taken on commission in New Zealand (paragraph 14). The passage complained of (in paragraph 16) may be somewhat ambiguously framed, but it seems to me reading altogether too much into it to conclude that the Master entertained a view that the whole of the proceedings might be conducted in another jurisdiction.

11    Evidence as to the estimated length of the proceedings was to be found in the affidavits of Ms Snell and Mr Chipchase. In Ms Snell’s affidavit, sworn on 26 October 1999, she estimated that the hearing of evidence on commission in New Zealand might take “five days plus”. Ms Snell went on to note that the matter would have to return to Sydney for hearing of the balance of the case. No estimate was given in this respect. Ms Snell expressed the view that the issues raised by the appellant as to liability (and upon the cross-claim) might take two days including legal argument. As I have noted, Mr Chipchase, in his affidavit of 28 October 1999, estimated that the evidence in the respondent’s case would take forty seven hours.

12    Ms Snell’s estimate was given prior to Mr Chipchase’s affidavit of 28 October 1999. Accepting Mr Chipchase’s estimate as to the probable length of the respondent’s case, it appears that the hearing of the matter on issues both of liability and quantum will exceed two weeks.

13    The Master specifically referred to Mr Chipchase’s estimate observing “the plaintiff’s counsel submitted that an approximate total of forty seven hours of evidence would be needed for the plaintiff’s witnesses to give evidence” (paragraph 4). The statement quoted above from paragraph 14 needs to be viewed in this light. As I have already observed, I do not read paragraph 14 as conveying that the Master considered that the whole hearing might be conducted in another jurisdiction. I am inclined to think that her reference to “the full hearing” in that paragraph picks up her earlier reference to the estimate as to the time needed to take the evidence of the respondent’s witnesses resident in New Zealand.

14    Rather more to the fore in the way Mr Hislop put his case was the submission that the Master’s determination was, in all the circumstances, unreasonable. He submitted that there is a serious contest both on liability and quantum in this case. The evidence suggested that the liability issues (save for one matter) could be determined by the court in two days. The respondent’s case on quantum would take some ten days. The estimated cost of that hearing (upon the assumption that evidence is taken on commission in New Zealand) is of the order of $200,000 - $250,000. In the event that the liability issues, or one of them, was determined in favour of the appellant these costs would be avoided.

15    Mr Hislop placed emphasis on two liability issues as suitable for separate trial. Firstly, the appellant pleads that the respondent had voluntarily assumed the risk of the journey. The respondent’s claim is governed by the provisions of the Motor Vehicles (Third Party Insurance) Act 1942 and not the Motor Accidents Act 1988. Voluntary assumption of risk is a complete defence. Secondly, the appellant pleads a defence based upon circuity of action. Pursuant to s 32 of the former Act the nominal defendant, if held liable in damages to the respondent, is entitled to recover on an indemnity basis from the owner of the vehicle. The appellant contends that the respondent was the owner of the vehicle at the date of the accident. The appellant has brought a cross-claim against the respondent claiming indemnity pursuant to the Act.

16    It is to be noted that the appellant also pleads a defence that the claim is barred pursuant to the provisions of the Limitation Act 1969. It is accepted that the Limitation Act defence is not a suitable matter for separate determination prior to the trial of the proceedings. The respondent contends that he is a person under a disability and that he is not statute barred by virtue of s 52 of the Limitation Act. His medical witnesses are relevant to the Limitation Act defence as well as on the issue of quantum. This produces the result (as the Master noted in paragraph 13) that if the respondent were successful on the separate trial of the liability issues identified, he might then proceed to a full hearing on quantum yet ultimately fail upon the limitation defence.

17    Mr Hislop submitted that the evidence as to liability, so far as the defendant is concerned, is all to be found in Australia. He pointed to the report of neuropsychologist, Gail Russell, annexure “B” to the affidavit of Josephine Snell sworn on 26 October 1999, in which the author notes:

“Mr Wereta was a poor historian, particularly for specific information such as dates and events and so much of the historical information contained in this report was obtained from his mother, Mrs Joyce Wereta.”

18    In the light of this Mr Hislop submitted that it must be considered unlikely that the respondent has relevant evidence to give on the liability issues identified for separate trial. Such evidence as he might give could be conveniently taken by way of video link. In this latter respect Mr Hislop pointed to the Master’s finding in paragraph 14. The whole of the respondent’s case on quantum depends upon the evidence of witnesses who are in New Zealand. The plaintiff’s application to have evidence taken on commission in New Zealand is yet to be determined but, in the event it were successful, the trial would be heard in two places; in New Zealand for some ten days plus (largely on issues going to quantum) and in New South Wales principally upon liability issues. In the event that the application to take evidence on commission is not successful, there will be very great expense occasioned by bringing all the plaintiff’s witnesses to Sydney. This expense may be avoided if the liability issue is determined in favour of the defendant. The cost benefit of separately determining the liability issues, which are ripe for separate determination, are so compelling as to lead to the conclusion that the Master must have erred in failing to so order.

19    Mr Bartley SC, who appeared with Mr Tuscano for the respondent, noted that the proceedings were commenced in 1997. The proceedings have been the subject of extensive case management and have reached the point, as the Master put it, of being “nearly ready for trial”. This was a factor, so Mr Bartley submitted, which was reflected in the Master’s reasons and was an important discretionary consideration. The respondent stood to suffer prejudice by his claim which was (save for the service of updated reports) ready for trial being held back by an order made at this late stage for the separate trial of certain of the liability issues. The grant of a separate trial would be the occasion of further delay in the event that the appellant was not successful on the liability issues.

20    Further Mr Bartley noted that there is an issue to be tried between the respondent and the appellant as to whether the respondent is statute barred. That issue has been apparent from the commencement of the proceedings and may not be resolved until the hearing of the principal proceedings.

21    Mr Bartley took issue with the assertion that the respondent had little, if any, evidence to give going to the liability issues identified as appropriate for separate trial. He referred me to Mr Chipchase’s affidavit, sworn on 10 December 1999, in which the solicitor asserts his belief that it is essential that the respondent give evidence both as to liability and quantum. Mr Bartley took me to passages in the same report of Gail Russell upon which Mr Hislop relied. Ms Russell states:

“During the assessment Mr Wereta answered questions but demonstrated very little spontaneous speech, however, when the assessment was finally completed he was much more forthcoming and freely engaged in very appropriate social conversation.”

22    Mr Bartley noted that a critical issue going to liability concerns the ownership of the motor vehicle as at the date of the accident.

23    Generally, it was Mr Bartley’s submission that the circuity of actions defence was the only live liability issue identified by the appellant. In this regard he was somewhat dismissive of the defence which pleaded no duty observing that it was “now legislated against, has been dead, if not buried in the common law for an awfully long time”. As to the circuity of actions issue he submitted that before the Court might (at this relatively late stage in the proceedings) make an order for a separate trial it was to be expected that the appellant would put on some evidence in support of its application tending to show some real colour to the defence. At an earlier directions hearing in the matter the respondent had sought to have the appellant serve statements of witnesses upon whom it proposes to rely on the issue of liability. None had been forthcoming.

24    In the course of her reasons the Master reviewed the leading authorities dealing with the question of the separate determination of issues pursuant to Part 31 r 2(a) SCR. It has not been submitted that she erred in her statement of the appropriate principles.

25    The Master described the separate determination of the issues of liability as at first glance being an attractive course. Important to her decision not to make an order for a separate trial was the question of how the evidence of the respondent might be taken.

26    Mr Hislop pointed to the Master’s observation that “the plaintiff’s evidence could be taken, with some difficulties, via video link” (paragraph 14). There was evidence that this could be done. However, this statement has to be read with the Master’s observation “for the Court to assess the reliability of the plaintiff’s evidence, he would need to be observed in the witness box over a period of time” (paragraph 16). She noted that the respondent may give evidence touching on the question of ownership of the vehicle. This, of course, is the central issue in the circuity of actions defence. It does appear that eliciting the respondent’s evidence will be difficult, having regard to his medical condition and his associated problems with concentration. Ms Russell required four two hour sessions in order to carry out her assessment of the respondent.

27    It seems to me it was open to the Master to conclude that an assessment of the reliability of the respondent’s evidence would require that he give evidence in the witness box (as distinct from via video link) over a period of time. It was open to her to conclude that in the light of the respondent’s condition and the need for him to give evidence as to the liability issues this was not a case where the determination of certain of those issues was ripe for separate trial.

28    I bear in mind the observations of Kirby P (as he then was) (with whom Meagher and Powell JJA agreed) in Morrison v Judd (unreported - NSWCA - 10 October 1995) at 7, namely:

“It is self evident that, in appeals of this character within the Supreme Court, it cannot have been parliament’s intention that one member of the Supreme Court (a single Judge) should simply substitute his or her opinion on a discretionary decision concerning a matter of practice for that earlier determination by another member of the Supreme Court (a Master). “

29    I am not persuaded that the appellant has established that the Master’s decision was attended by error in the determination of the facts or that it was so unreasonable as to bespeak error in the application of the principles, which she correctly stated, to those facts.

ORDERS:

30    1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs as agreed or
assessed.

*****

Last Modified: 05/03/2001