Peterson v The Nominal Defendant [2010] NSWSC 1085

New South Wales Supreme Court

CITATION : Peterson v The Nominal Defendant [2010] NSWSC 1085

HEARING DATE(S) : 17 September 2010

JUDGMENT DATE : 21 September 2010

JURISDICTION : COMMON LAW

JUDGMENT OF : Davies J

DECISION : (1) Order pursuant to Part 28 rule 2 that the question of liability be decided separately and in advance of other issues in the proceedings. (2) I vacate the hearing date of 22 November 2010 and in lieu thereof fix the hearing of the trial on liability for 29 November. (3) The Plaintiff is to pay the Defendant's costs of the Motion to vacate and costs thrown away by reason of the delay of the hearing from 22 to 29 November 2010.

CATCHWORDS : PROCEDURE - personal injuries claim - proceedings given an early date on Plaintiff's application - Plaintiff change of solicitors - application to vacate the hearing - delay in obtaining file from previous solicitors - separate hearing ordered on liability.

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Procedural and other rulings

CASES CITED : Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951

PARTIES : Qier Peterson (Plaintiff) The Nominal Defendant (Defendant)

FILE NUMBER(S) : SC 2010/44657

COUNSEL : K Andrews (Plaintiff) D Wilson (Defendant)

SOLICITORS : Wyatt Attorneys (Plaintiff) Hunt & Hunt (Defendant)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES J

21 SEPTEMBER 2010

2010/44657 PETERSON V THE NOMINAL DEFENDANT

JUDGMENT 1 The Plaintiff was injured in a motor vehicle accident on 2 November 2008 on the Stuart Highway between Coober Pedy and Maria in South Australia. She alleges that a large truck or road train, which was overtaking her, cut her off causing her to take evasive action. As a result, her vehicle left the road and rolled over 3 to 4 times before coming to a halt on its driver's side pinning the Plaintiff underneath the vehicle. 2 She was travelling in the vehicle with her then partner and her sister. The large truck or road train that caused her to take the evasive action is unidentified and, for that reason, she brings the proceedings against the Nominal Defendant. 3 The Plaintiff was severely injured having suffered a dislocation of her cervical spine leaving her with C5 complete tetraplegia. 4 The proceedings were commenced on 19 February 2010. The Plaintiff was then represented by Galluzzo Andriano Solicitors. 5 On 22 April 2010, those solicitors filed a Notice of Motion seeking, principally, that the proceedings be expedited. The 2 bases for that were the Plaintiff's need for care together with lack of means in that regard, and also that she was suffering from severe depression where it was thought that suicide might be an issue. The Motion came before Registrar Bradford on 21 May 2010 and Consent Orders were made for the preparation of the matter and for the fixing of a hearing date on 22 November 2010 with an estimate of 15 days. 6 One of the affidavits in support of the Motion was filed by Mr John Andriano, the solicitor for the Plaintiff, who deposed that the Plaintiff was ready to take a hearing date in August 2010 and "arrangements were in train for the attendance of overseas witnesses". 7 On 4 June 2010, the Plaintiff's present solicitor, Neville Wyatt, of Wyatt Attorneys was retained in the place of Mr Andriano. Mr Wyatt promptly briefed Mr Kelvin Andrews of counsel who provided an advice on 28 June 2010. In that advice, Mr Andrews set out matters which he considered needed to be dealt with as far as evidence was concerned. Most of the advice dealt with matters which concerned the assessment of quantum of damages. The advice briefly referred to liability and a report of Grant Johnston, a traffic engineer. Mr Andrews' view was that the matter was not ready to proceed and an application should be made forthwith to vacate the hearing date. 8 A Notice of Motion was filed on 2 August 2010 and sought an order that the hearing date of 22 November 2010 be vacated. At the time the Notice of Motion was filed, Mr Wyatt had not been able to obtain access to the file which had been retained by the previous solicitors. 9 When the matter came before me on 4 August 2010 on short notice, I directed that the former solicitors bring the file to Court on 10 August 2010 when the matter was next listed. That resulted in the file being produced to the present solicitors on 9 August 2010. 10 When the matter came before me again on 20 August 2010, Mr Andrews informed me that there were 15 volumes in the file. I stood the matter over to 2 September 2010 and expressed the hope that, notwithstanding the late passing of the file, the matter still might be able to be prepared for hearing so that it could proceed on 22 November 2010. 11 I was informed on 2 September 2010 that the Plaintiff would be pursuing the Motion but that it was resisted by the Defendant. I stood the Motion over to 17 September 2010 for hearing. 12 The Plaintiff relied on an Affidavit of Mr Wyatt sworn 2 August 2010 and an Affidavit from another solicitor in his practice, Julie Wyatt, sworn 25 August 2010. The latter Affidavit annexed the further advice from Mr Andrews of 16 August 2010. 13 In that advice Mr Andrews identified 2 liability issues. The first was that the Defendant appeared to be contending that the Plaintiff simply lost control of her vehicle and that no other vehicle was involved. The second issue concerned whether the Plaintiff was wearing a seatbelt. Mr Andrews said that there might be 30 witnesses who would be able to address those 2 issues. The witnesses appeared to be located in South Australia, France and Switzerland. Those witnesses in South Australia, it was explained to me at the hearing of the Motion, were police officers, ambulance officers and officers of the SES. In his advice Mr Andrews said that formal applications needed to be made to speak to those witnesses. 14 His advice then went on to consider matters concerned with quantum, and he reminded the solicitors that a large number of the matters in his earlier advice in relation to quantum still needed attention. 15 The Defendant opposed the vacation of the hearing date because, as Ms Amanda Harley, the solicitor for the Defendant, set out in her Affidavit, the Defendant is ready to proceed. She said that she had retained Mr Darrell Trim QC of senior counsel who had been involved in the preparation of the matter for trial. He had set aside the time for the hearing and, if it is vacated, the only availability he has before 30 June next year is a 3-week period from Monday, 25 April to Friday, 20 May 2011. 16 Mr David Wilson of counsel who appeared for the Defendant also reminded me of what the High Court said in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951.