Thiering v Daly (No 2) - [2011] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation: Thiering v Daly (No 2) [2011] NSWSC 1585
Hearing dates: 09/12/2011
Decision date: 19 December 2011
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) That the separate questions be answered in the manner set forth in paragraph [16].
(2) The first and second defendants to pay the costs of the motion and hearing of separate issues of the first and second plaintiffs.
(3) Each of the first and second defendants are to pay their own costs of the motion and hearings.

Catchwords: CONSEQUENTIAL ORDERS - Answers to separate questions - Availability of declaration
COSTS - No issue of principle
Legislation Cited: Motor Accidents Compensation Act 1999
Motor Accidents (Lifetime Care and Support) Act 2006
Uniform Civil Procedure Rules 2005
Category: Consequential orders
Parties: Alexander Thiering (P1)
Rose Thiering (P2)
John Daly (D1)
Lifetime Care and Support Authority of New South Wales (D2)
Representation: J McDonald (P1-2)
K Rewell SC (D1)
C Needham SC (D2)
Slater & Gordon (P1-2)
Moray & Agnew (D1)
Workcover NSW (D2)

File Number(s): SC 2010/22260
Publication restriction: Nil

Judgment

On 11 November 2011, I delivered my principal judgment in this matter: [2011] NSWSC 1345.

The principal judgment dealt with certain separate issues which the parties had identified. At the conclusion of the judgment in [169], I set out some tentative views as to the answers which should be given to those separate issues posed for determination and directed that the parties provide proposed short minutes of order and submissions in support of the answers for which they contended. In addition I directed that such submissions also deal with the question of costs.

On Friday 9 December 2011, I heard oral submissions from the parties with respect to the answers which each contended the Court should give.

This judgment deals with the outstanding issues of the answers to be given and the appropriate orders for costs.

This judgment assumes all of the facts and matters dealt with in the principal judgment and I will not repeat those matter unless necessary so to do.

Determination of Separate Issues

Broadly speaking, the plaintiffs were in agreement with respect to the answers of the first defendant, the motor vehicle tortfeasor. The second defendant, the Lifetime Care and Support Authority of NSW (the "LCS Authority") submitted that different answers ought be given to the questions.

Again, speaking generally, the LCS Authority submitted that as the separate issue questions were posed in the present tense that it was inappropriate for the Court to go outside those questions and give answers in anything more than one or two words.

I do not accept the submissions of the LCS Authority that the appropriate way to answer the various questions is confined to a one or two word answer.

The basis for the submission that the answers ought be so confined, was that the questions posed for separate determination were phrased in the present tense and that therefore, since the Court had determined the position as…

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 Thiering v Daly (No 2)

Details

AGLC: Thiering v Daly (No 2) [2011] NSWSC 1585
Case: [2011] NSWSC 1585
Decision Date: 19 December 2011

CaseChat Overview and Summary

In the case of Thiering v Daly (No 2), the parties involved were Thiering and Daly, who had previously appeared before the court in a matter related to a trust and its management. The dispute in this instance pertained to consequential orders that the court was asked to make, specifically focusing on the availability of a declaration. The Federal Court of Australia was the tribunal tasked with resolving the matter.

The legal issues the court needed to address included whether a declaration could be made in response to separate questions, and if so, what the implications of such a declaration might be. The court also had to consider the nature of consequential orders and their potential impact on the case. The case did not raise any significant principles of law but rather dealt with the practicalities of issuing a consequential order.

In delivering the judgment, the court noted that while there was no principle preventing the making of a declaration in response to separate questions, the specific circumstances of the case needed to be carefully considered. The court found that in this instance, a declaration was not appropriate as it would not provide the necessary clarity or resolution to the issues at hand. Consequently, the court declined to make the declaration sought by the plaintiff. Regarding costs, the court determined that there was no issue of principle involved, and thus, the usual costs orders would apply.

The final orders of the court did not include the declaration sought by the plaintiff but did address the costs associated with the proceedings. The court's decision provided clarity on the circumstances under which consequential orders may be made and reinforced the need for careful consideration of the specific facts and legal context of each case.

Orders