Supreme Court New South Wales Medium Neutral Citation: Melenewycz v Whitfield [2015] NSWSC 386 Hearing dates: 2 April 2015 Date of orders: 02 April 2015 Decision date: 02 April 2015 Jurisdiction: Common Law Before: Campbell J Decision: The hearing of the separate question of liability fixed for 10 April 2015 is vacated; The plaintiff is to pay the defendant's costs of today and the costs thrown away by reason of the adjournment; The matter is listed for directions before the common law case management registrar on Friday 1 May 2015 at 9.00 am. Catchwords: PROCEDURE – civil – interlocutory issues – application to vacate hearing Legislation Cited: Motor Accident Compensation Act 1999 (NSW) Cases Cited: Connaughton v Pacific Rail Engineering Pty Ltd (Norton SC DCJ, unreported 12 February 2015); Kelly v Westpac Corporation [2014] NSWCA 348 Category: Procedural and other rulings Parties: Anthony Melenewycz (Plaintiff); David Patrick Whifield (Defendant) Representation: Counsel: P. Kondich (Plaintiff); K.P. Rewell SC (Defendant) Solicitors: File Number(s): 32014/233733 EX TeMPORE Judgment (REVISED) 1. This is a claim brought under the blameless accident provisions of the Motor Accident Compensation Act 1999 (NSW). It concerns injuries received by the plaintiff on a country road in north-western New South Wales when the motorcycle he was riding collided with a kangaroo. The case involves legal and factual issues arising out of s 7E of the Act about whether this accident was caused by an act or omission of the plaintiff, to paraphrase the provision, because if it were, the plaintiff would have no entitlement to damages even though the accident may be blameless. 2. The plaintiff has recently served an expert's report from Mr Nigel McDonald, an accident reconstructionist known in the motor accident field. Mr McDonald's opinion, based upon the assumptions put to him by the plaintiff's lawyers, and not having had the opportunity to carry out site inspections and other investigations in relation to the accident, is that this is what is sometimes referred to as an inevitable accident. From that I imagine it is hoped to argue that no act or omission on the part of the plaintiff can be taken to have contributed as a cause of the accident. 3. Mr Rewell SC, who appears for the defendant, acknowledges that the opinion is potentially relevant to the issues that have to be resolved and says that if the evidence is to be admitted it would be necessary for the defendant to obtain its own opinion and have its own expert check on Mr McDonald's opinion to obtain, if available, countervailing evidence. 4. This application is made very late because the hearing is on next Friday 10 April 2015. Mr Kondich of counsel, who appears for the plaintiff, has read in support of the application an affidavit of his instructing solicitor, Mr Pearcey, sworn on 31 March 2015. It appears that, notwithstanding the defendant pleading s 7E as a "defence", some of the nuances about the operation of s 7E have become more apparent since the decision of Judge Norton SC in Connaughton v Pacific Rail Engineering Pty Ltd (Norton SC DCJ, unreported 12 February 2015). After that decision was handed down on 12 February 2015, a notice to admit facts was served by the defendant on the plaintiff referring to "involuntary acts", which were disputed. 5. Mr Pearcey conferred with Robert Sheldon SC on 20 March when senior counsel advised evidence of the type now obtained was, if not vital, potentially important for the outcome of the plaintiff's case. With commendable celerity thereafter, Mr Pearcey instructed Mr McDonald and, perhaps unusually, Mr McDonald was able to provide his opinion within one week of the request, on Monday 31 March. Since then again the plaintiff has moved with commendable celerity to bring the matter before the Court today. 6. I bear in mind the important case management considerations bearing upon matters of practice and procedure in this Court, as recently discussed by the Court of Appeal in Kelly v Westpac Corporation [2014] NSWCA 348. However, their Honours emphasised in that case the primacy of the requirements of justice. It seems to me that there is, in this case, an adequate and satisfactory explanation for the late application, that the opinion of Mr McDonald may well be important evidence in the plaintiff's case, and there can be no doubt that the defendant needs the opportunity to meet it. 7. In those circumstances the proper exercise of my discretion is to grant an adjournment. I also observe that the plaintiff has proffered the offer that he pay the defendant's costs thrown away, acknowledging that a wasted costs order is not a panacea, it remains a factor which weighs in favour of the exercise of my discretion to grant the adjournment. 8. I did raise with Counsel whether this matter should be remitted to the District Court given that on first inspection, and I could be wrong, the plaintiff's damages do not seem likely to exceed $1 million. But Mr Rewell has explained that the issue is an important one generally for the cases that are being brought more frequently now under these provisions and that their resolution would be assisted by a decision of the Supreme Court on the meaning of s 7E. 9. On that basis it seems to me appropriate that the matter should continue in this Court. For these reasons my orders are: 1. The hearing of the separate question of liability fixed for 10 April 2015 is vacated; 2. The plaintiff is to pay the defendant's costs of today and the costs thrown away by reason of the adjournment; 3. The matter is listed for directions before the common law case management registrar on Friday 1 May 2015 at 9.00 am. ********** Amendments 08 April 2015 - Decision date amended to 2 April 2015 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. Decision last updated: 08 April 2015