Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18

District Court New South Wales

Medium Neutral Citation: Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18 Hearing dates: 1 & 2 March 2012 Decision date: 07 March 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the first and second defendants on the plaintiff's claim; 2.The plaintiff is to pay the costs of each of the defendants on the ordinary basis unless otherwise ordered; 3.Exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - near collision between bus and motor vehicle - injury to passenger on bus - subrogated claim - recovery action by workers' compensation insurer pursuant to s 151Z(1)(d) of Workers' Compensation Act 1987 - whether plaintiff established negligence of drivers of two unidentified motor vehicles - whether due inquiry and search established; DAMAGES - damages assessment in recovery proceedings Legislation Cited: Australian Road Rules, r 126 Motor Accidents Compensation Act 1999, s 34, s 39 Workers' Compensation Act 1987, s 151Z(1)(d) Cases Cited: Anikin v Sierra [2004] HCA 64 Derrick v Cheung [2001] HCA 48 Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 NSW v Nominal Defendant [2004] NSWCA 328 Oztan v NSW Ministerial Corporation (1995) 23 MVR 259 Category: Principal judgment Parties: Penrith City Council (Plaintiff) East Realisations Pty Ltd (in liq) (First defendant) Nominal Defendant (Second defendant) Representation: Mr M Jenkins (Plaintiff) Mr R Cavanagh (First defendant) Mr J Catsanos (Second defendant) Turks Legal (Plaintiff) Vardanega Roberts (First defendant) Holman Webb (Second defendant) File Number(s): 2009/336531