Mackenzie v Allianz Australia Insurance Limited [2015] NSWSC 603

Supreme Court New South Wales

Medium Neutral Citation: Mackenzie v Allianz Australia Insurance Limited [2015] NSWSC 603 Hearing dates: 19 May 2015 Date of orders: 19 May 2015 Decision date: 19 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: See paragraph 13 Catchwords: CIVIL LAW – interlocutory orders - application to vacate hearing date – failure to comply with directions – costs - no point of principle Category: Procedural and other rulings Parties: Geoffrey Allen Mackenzie (Plaintiff) Allianz Australia Insurance Limited (1st Defendant) Motor Accidents Authority of New South Wales (2nd Defendant) A Review Panel Appointed by the Motor Accidents Authority of New South Wales Constituted by Assessors Burns, Chan and Crane (3rd Defendant) Representation: Counsel: Ms E Grotte (Plaintiff) Ms A Poljak (1st Defendant) Mr M Granziera (2nd and 3rd Defendant) File Number(s): 2014/363485

Ex parte Judgment 1. The first defendant in these proceedings, that being Allianz Australia, makes application to vacate the hearing date fixed in this matter which is currently the 27 May 2015. That is eight days away. 2. The defendant further asks for orders dispensing with the requirement for the filing and service of a notice of motion and for the application to be dealt with instanter. 3. The plaintiff opposes the vacation of the hearing date. The second and third defendants do not seek to be heard on the question, and regard it as a matter for the court. 4. The application to vacate the hearing date centres around what is contended to be a failure to comply with court orders by the plaintiff. That is, the parties were subject to a timetable fixed by the Registrar on 11 February 2015. One of those orders required the plaintiff to file and serve evidence by 25 March 2015. That order was not complied with. The evidence was not served by that date and indeed, I am told from the Bar table, and there is no issue taken with this, that an affidavit was provided by the plaintiff on 15 May, four days ago, which referred to evidence which was not attached to the affidavit or available to be viewed at that time. 5. There is an issue between the parties as to whether or not the plaintiff should be obliged to serve the evidentiary material. 6. On the limited information that I have, it would appear that the evidentiary material is voluminous. The plaintiff contends that the evidence is constituted by material which has already been before a review panel and which the defendant, not only has or has access to, but which indeed the defendant is the originator of, at least for some 2000 or so pages of the evidence. 7. There is no real issue taken with that fact by the first defendant but the defendant maintains that it is necessary for it to be in a position to go through the evidence upon which the plaintiff will rely to ensure that the material is there, and to prepare their submissions in the light of that material. 8. It seems to me that if the plaintiff was to take the view that it was not necessary for them to provide the evidence, then that should have been raised before the Registrar on 11 February 2015 when the timetable was set. It is not in my view good enough to accept a timetable, fail to comply with it and then retrospectively argue that it wasn't necessary to comply with the timetable for particular reasons connected with the nature of the evidence and the identity of the original creator of the evidence. 9. The defendant is entitled to know precisely what the evidence is that the plaintiff will bring. The defendant is entitled to be in a position to review the evidence and to address any particular aspects of it that is of relevance to the proceedings. With the best will in the world, I cannot see how eight days could possibly be sufficient for that, given the large amount of material that the plaintiff has indicated, by an affidavit filed in court with leave this morning, it is to rely upon. 10. The plaintiff asserts that the size of the task of assembling the evidence is such that it could not have complied with the Registrar's orders, but is not prepared to allow that the size of the material could provide the same burden and difficulties for the defendant. 11. Hearing dates of course should not be let go of lightly, but it seems in this instance, on the material placed before me on this application, that the defendant would have very little chance, if any, of readying its case, given the extraordinarily late and partial service of the evidence. 12. Accordingly I propose to grant the defendant's motion.