The Nominal Defendant v Wereta [2000] NSWSC 678

New South Wales Supreme Court

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 Supreme Court Rules LEGISLATION CITED : 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: