New South Wales Supreme Court CITATION : Misiarek v Szpilczac [1999] NSWSC 307 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12304/98 HEARING DATE(S) : 7 April 1999 JUDGMENT DATE : 7 April 1999 George Misiarek (First Plaintiff) PARTIES : Rook Maintenance Pty Limited (Second Plaintiff) Peter Miroslaw Szpilczac (Defendant) JUDGMENT OF : Dunford J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 1745/98 LOWER COURT JUDICIAL OFFICER : McLachlan ADCJ COUNSEL : Mr R Goodridge (Plaintiffs) Mr R Royle (Defendant) SOLICITORS : Firths, The Compensation Lawyers (Plaintiffs) Bruce and Stewart, Lawyers (Defendant) CATCHWORDS : PROCEDURE - Declaration; Discretion; Issue determined in District Court. Motor Accidents Act 1987 Motor Accidents Act 1988 ACTS CITED : Supreme Court Act 1970 District Court Act 1973 District Court Amendment Act 1997 (No. 58) Williams v Hunt [1905] 1 KB 512 McHenry v Lewis (1882) 22 Ch D 397 CASES CITED : Forster v Jododex Pty Limited (1972) 127 CLR 421 Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 Land v Clyne (1968) 92 WN(NSW) 134 Sankey v Whitlam (1978) 142 CLR 1 DECISION : Summons dismissed. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 7 APRIL 1999 12304/98 - George MISIAREK & Ors v Peter Miroslaw SZPILCZAC JUDGMENT 1 HIS HONOUR: In these proceedings commenced by Summons on 22 September 1998, the plaintiffs seek a declaration that they are not in breach of s 48 of the Motor Accidents Act 1987 for failing to submit to an interrogation by an investigator nominated by the defendant. 2 The matter was previously heard by Adams J on 26 October 1998 in the absence of the defendant and his legal representatives, but on 3 December 1998 Hulme J, by consent, ordered that the orders made by Adams J be set aside and the matter be re-heard. 3 The present plaintiffs are also the plaintiffs in District Court action 1745/98 in which they seek damages for personal injuries suffered by the first-named plaintiff in a motor vehicle accident and the proceedings are accordingly governed by the Motor Accidents Act 1988 (the Act). 4 For present purposes it is only necessary to recite that the plaintiff in his Personal Injury Claim Form, pursuant to s 43 of the Act asserted that police from Newtown came to the scene of the accident, but later enquiries of the New South Wales Police Service indicated that the police had no record of any report of the accident. Consequently, by letter dated 23 February 1998, the defendant's insurer wrote to the plaintiffs' solicitors making a formal request, said to be pursuant to s 48(1)(a) and (b) of the Act, for permission to interview the first plaintiff to obtain a statement in relation to the circumstances of the accident. In the letter they made reference to the fact that Newtown police confirmed they knew nothing about the plaintiffs' accident. By letter dated 9 March, the first plaintiff through his solicitors refused the interview but agreed to answer specified questions submitted in writing. 5 Shortly afterwards the first plaintiff commenced the relevant proceedings in the District Court at Sydney. By Notice of Motion filed in that Court on 23 April 1998 the defendant sought orders that the Statement of Claim be dismissed or alternatively struck out on the grounds that the plaintiff had failed to comply with s 42 of the Act and also failed to comply with s 48(1)(a) and (b) of the Act, in that he had failed to furnish information sufficient to allow the defendant to investigate the validity of the claim for breach of duty of care prior to commencement of the proceedings. 6 The motion came on for hearing before McLachlan ADCJ and in his judgment on 14 July 1998 his Honour dismissed the claim so far as it related to s 42, but in relation to s 48 said: "I believe that there was a s 48 breach by the plaintiff in that if the plaintiff did not wish to be interviewed, the two statements by Eysmont should have been provided ... In the circumstances as they were at the time of the filing of the Statement of Claim, the action should not have been commenced. However, in view of the s 54(4) problem, I suggest for consideration that the plaintiff's solicitor serve an affidavit by the plaintiff containing the plaintiff's in-chief evidence as to both liability and quantum and I would then intend to case manage the case. If the plaintiff's solicitor does not wish to take up this proposal, then I will strike the action out, but before I make any order I should of course give the parties opportunity to consider what I have said and address me if they think appropriate". 7 The matter was adjourned. Subsequently on 10 August 1998 his Honour ordered that the plaintiff submit to an interview with an investigator (that is, nominated by the defendant's insurer) within forty-eight days, leave to apply, and the matter was adjourned. It appears that the plaintiff sought the period of forty-eight days in order to enable this application to be made and, whilst the defendant consented to the period of time, he did not consent to anything else. 8 Section 48 imposes various duties of co-operation on a plaintiff and subs (3) of that section provides that if the claimant fails without reasonable excuse to comply with the section, court proceedings cannot be commenced in respect of the claim while the failure continues. 9 It was in reliance of s 48(3) that the application to dismiss or strike out the Statement of Claim was made. 10 His Honour indicated in his judgment earlier referred to that at the proposed interview the plaintiff's solicitor could be present and the plaintiff was not to be cross-examined by the investigator. 11 A preliminary question has arisen as to whether this Court has the power to make a declaration in this case and if so, whether it should make such a declaration. 12 On behalf of the defendant it has been submitted firstly, that the court has no jurisdiction, secondly, that these proceedings are an abuse of process, and thirdly, that in the exercise of my discretion I should decline to exercise the declaratory jurisdiction conferred on the Court by s 75 of the Supreme Court Act 1970. 13 In relation to jurisdiction, my attention was directed to s 143 of the District Court Act 1973 as amended by the District Court Amendment Act 1997 No 58 which should be read in conjunction with s 41(1)(d) inserted by the same Act, which conferred jurisdiction unlimited as to amount on the District Court in any motor accident claim, including all actions under the Motor Accidents Act. Section 143 provides if this Court is of the view that proceedings pending in the Court could properly have been commenced in the District Court, it may transfer the proceedings to that court and subs (5) provides: "Without limiting any power of the Supreme Court under this section, the Supreme Court may, at any time after the commencement and before the hearing of the action, consider any action for damages in respect of personal injury or death, in order to determine whether an order under this section transferring the proceedings ought to be made. Having considered the action, the Supreme Court is to make such an order unless: (a) in the case of a motor accident claim, the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1 million and that the case involves complex legal issues or issues of general public importance . . . . . ." 14 That section clearly does not apply to these proceedings because they are a claim for a declaration and are not an action for damages in respect of personal injury or death. Accordingly, neither that section nor any other provision of the District Court Act deprives this Court of jurisdiction, but on the other hand, s 143 evinces a clear intention that except in a very limited class of case (of which the current proceedings in the District Court is not one), all actions under the Act are to be heard and determined in the District Court. 15 It was next submitted that these proceedings constitute an abuse of process because they seek to litigate in this Court a matter which is already the subject of litigation in another court of competent jurisdiction within this State: see generally Williams v Hunt [1905] 1 KB 512; McHenry v Lewis (1882) 22 Ch D 397. 16 I am satisfied that these proceedings do come within the principle and constitute an abuse of process. In this regard I refer in particular to the Notice of Motion filed in the District Court to which I have already referred. That motion specifically sought an order dismissing the Statement of Claim or striking it out upon the grounds of a failure to comply with s 48(1)(a) and (b) of the Act. That is exactly the same issue as is sought to be litigated in the present Summons which, as I have said, seeks a declaration that the plaintiffs are not in breach of s 48 of the Act. However, merely because the proceedings constitute an abuse of process does not, as far as I can tell in the limited time available to me, render them incompetent, although there is a discretion for the Court to strike them out for that reason. 17 I therefore proceed to consider the question of the exercise of discretion which the Court undoubtedly has in respect of declaratory relief under s 75 of the Supreme Court Act. 18 One consideration that is always relevant to the exercise of discretion is the availability of alternative remedies in other courts or tribunals. In Forster v Jododex Pty Limited (1972) 127 CLR 421 the question arose as to whether the court should make a declaration in relation to the rights of a party which were the subject of proceedings before Mining Warden. Street J, as he then was, at first instance had made the declaration. At 438 Gibbs J said: "The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before a warden". 19 He then considered a number of reasons in favour of exercising the discretion; it was a matter of statutory construction and the matter had been fully argued, both at first instance and before the High Court, and he concluded that as a matter of convenience it was appropriate to grant declaratory relief. I draw attention in particular to the fact that one of the matters considered relevant by his Honour was that the other proceedings were not in an "ordinary court." The other Justices agreed with him on this point, although Walsh J expressed considerable reservations and said at 427: "In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervening, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute". 20 A number of cases on the exercise of the discretion where there are alternative civil remedies are collected in Young: Declaratory Orders (1975) at paras [805]-[809]. I draw attention in particular to Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 where Street J, declined to exercise the declaratory jurisdiction where all the questions raised were properly to be investigated by the magistrate in the Court of Petty Sessions in tenancy proceedings and said (at 26) that as a general proposition the jurisdiction of this Court to grant declaratory relief will not be exercised where another tribunal has full jurisdiction to investigate and determine the matters raised, and where that other tribunal can be seen to be the tribunal either expressly indicated by Parliament or indicated by considerations of convenience to be the preferable tribunal to entertain the contest. See also Land v Clyne (1968) 92 WN(NSW) 134. There is also a long string of decisions to the effect that it is undesirable for this Court to intervene by declaratory relief in committal or criminal proceedings, see, for example, Sankey v Whitlam (1978) 142 CLR 1 at 25-26. 21 In this case, not only is there jurisdiction in the District Court to determine the matter, and not only does s 143 of the District Court Act make it clear that that is the tribunal favoured by Parliament for the determination of these issues, but the proceedings are already on foot to determine this very issue in the District Court and consequently I am satisfied these proceedings are an abuse of process. It goes further than that, because not only have the proceedings to determine this very issue commenced in the District Court but they have been determined by McLachlan ADCJ in that Court; and although not in form, this is in effect an appeal by the plaintiffs against his Honour's decision. Appeals from decisions of the District Court lie to the Court of Appeal, in interlocutory cases by leave of that Court, and in my view it is not appropriate for a judge sitting in a Division to circumvent or permit the parties to circumvent or avoid that procedure by granting declaratory relief. 22 Mr Goodridge on behalf of the plaintiffs has pointed to a number of factors which he submits should persuade me in the exercise of my discretion to consider the matter on its merits. He submits that as the order is conditional the plaintiffs cannot apply to the Court of Appeal. I see no problem here. The District Court has made an order that the first plaintiff submit to an interview with the investigator and has indicated that if he does not the Statement of Claim will be dismissed or struck out. If it is the first plaintiff's contention that that is an order that could not have been made, or should not have been made, the remedy is to apply to the Court of Appeal for leave to appeal. 23 It was also submitted that the question of the right of defendants' investigators to interview plaintiffs is a matter of general concern in proceedings under the Act and it would be desirable to have a ruling from a judge of this Court which would be binding on District Court judges. The obvious answer to this argument is it would be even better to have an authoritative ruling from the Court of Appeal if that was what was desired. 24 It would be undesirable, in my view, for interlocutory rulings in the District Court to be the subject of applications to this Court for declaratory relief. To give another example removed from this litigation: if proceedings were pending in the District Court for damages for breach of contract, it would be undesirable to apply to this Court for a declaration as to the proper construction of the contract. 25 For these reasons I am satisfied this is a case where this Court should not intervene by way of declaratory relief and the parties should be left to their remedies under the Motor Accidents Act, the District Court Act and their rights of appeal to the Court of Appeal. Accordingly, the summons is dismissed. 26 (Mr Goodridge addressed on costs.) Although the plaintiffs have failed on the discretionary ground indicated in my judgment, it is a ground that in my view the plaintiffs' advisers should have foreseen and anticipated. Accordingly, I order the plaintiffs to pay the defendant's costs of the proceedings. ************ Last Modified: 04/14/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.