Zhang v Popovic
[2015] NSWSC 600
•19 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: Zhang v Popovic & Ors [2015] NSWSC 600 Hearing dates: 19 May 2015 Date of orders: 19 May 2015 Decision date: 19 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: See paragraph 6
Catchwords: CIVIL LAW – interlocutory – application to vacate hearing date – costs - no point of principle Category: Procedural and other rulings Parties: Chang Nian Zhang (Plaintiff)
Vlado Popovic (1st Defendant)
Calabro Real Estate Pty Limited (2nd Defendant)
Interfreight (Aust) Pty Ltd (3rd Defendant)
Popovic Haulage Pty Ltd (4th Defendant)
National Transport Insurance by its Manager NTI Ltd (6th Defendant)
ROC Services (NSW) Pty Ltd (7th Defendant)Representation: Counsel: Mr L King SC (Plaintiff)
Mr PM Barham – 1st to 4th Defendants
Ms Zhou – 6th Defendant
Ms DJ Dinkha – 7th Defendant
File Number(s): 2009/298017
Ex tempore Judgment
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The matter of Zhang v Popovic & Ors was listed before the court this morning to determine an issue as to interrogatories which the plaintiff sought to issue against some of the defendants at least, there being seven defendants to the action lodged on behalf of the plaintiff.
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The parties have had some discussions this morning and it may be that the matter ought to be resolved in a different way. The difficulty it appears, from the information that is before the court, is that, whilst there is no dispute that the plaintiff suffered catastrophic injuries which have rendered him, tragically, a paraplegic in an incident involving an apparently faulty hydraulically operated ramp, there has been some difficulty, from the plaintiff’s point of view, in identifying the party who is to be held liable, if indeed any party can be, for the failure of the hydraulic ramp. That goes some way to explain the number of defendants to the action.
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The plaintiff has not been able to come to grips with who it is that in fact may be liable for the fixing of a clevis mount attaching the hydraulic ramp to a trailer. The interrogatories were designed to come to grips with that issue. It seems, however, on all of the information placed before the court, that the matter is very unlikely to be ready from the point of view of the plaintiff and, because of likely amendments to the plaintiff’s case, the first to fourth and seventh defendants. The sixth defendant has been ready to proceed and has been in the past. The sixth defendant, all parties agree, is not at fault for any delay of the proceedings.
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It would appear that there is some basis upon which to hope that if the party at fault can be adequately identified, the matter can proceed with mediation to a settlement. That plainly would be the preferable course. Litigation will be expensive for everyone and there are no cases in which everyone, or even the winner, recovers all of his or her costs. No order for costs will compensate the parties for the amount that is actually spent in preparing and prosecuting the matter before the court. I say that to urge the parties to participate in a meaningful way in mediation that might occur in the hope that the matter can be resolved without the need for a court hearing.
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On the application of the plaintiff, I propose to vacate the hearing date of the matter, that being 1 June 2015. I will refer the matter to the Registrar for a fresh timetable to be fixed. Leave will be granted to the plaintiff to amend the statement of claim. I will note the intention of the parties at this stage to participate in mediation.
Orders
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I make the following orders:
The hearing date of 1 June 2015 is vacated.
Leave is granted to file an Amended Statement of Claim
The listing before the Common Law Registrar on 25 May 2015 is vacated.
The matter is listed before the Common Law Registrar at 9am on 9 June 2015 for directions.
Costs of all parties thrown away are to be determined at a later date.
Decision last updated: 20 May 2015
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