McDougall v Nominal Defendant [2020] NSWDC 194

District Court New South Wales

Medium Neutral Citation: McDougall v Nominal Defendant [2020] NSWDC 194 Hearing dates: 8 May 2020 Date of orders: 08 May 2020 Decision date: 08 May 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 25-26 Catchwords: PRACTICE AND PROCEDURE – civil proceeding – joint application to adjourn hearing – reliance on COVID-19 pandemic as a reason to vacate – suitability and fairness of virtual courtroom process Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 Category: Procedural and other rulings Parties: Mr GG McDougall Nominal Defendant Representation: Counsel: Mr R Quickenden for the plaintiff Mr S Hunt for the defendant

Solicitors: Brazel Moore Lawyers for the plaintiff Sparke Helmore Lawyers for the defendant File Number(s): 2018/26211 Publication restriction: Nil

Judgment 1. This proceeding commenced in January 2018. The hearing for this matter is listed for 18 May 2020. The parties commonly join in an application to vacate the hearing and for the matter to be listed in the Gosford sittings in August 2020. 2. The Practice Note for civil proceedings in this Court generally indicates that adjournments are not to be granted save for exceptional reasons. 3. The proceeding arises out of an alleged motor cycle accident on 22 July 2016. The plaintiff was the driver of a motor cycle. He says that he was riding south on the Pacific Highway waiting to turn right at the intersection of the New England Highway. He asserts that as he was trying to effect a right hand turn, a car struck him from his right side and hit the plaintiff's rear exhaust. The defendant denies that any accident occurred. It also disputes any injuries, or any significant injury or disability. 4. The parties agree that liability is vigorously in dispute. Engineering experts are to be called for the parties. I am informed that the experts have been in the process of engaging in a conclave but it was uncertain whether they had prepared a joint report. 5. Also relevant to the application is that in April 2020, a Panel of the Medical Assessment Service ('MAS') determined that the plaintiff was not eligible to recover non-economic loss. I was informed that the plaintiff was considering an application for review of that decision. 6. The plaintiff submits that the order for vacation should be made because: 1. the liability (engineering) experts are in the process of undertaking a conclave and preparing a joint report, but that may not be available by the time the case is heard; 2. the plaintiff wants to review the MAS determination on non-economic loss; 3. the nature of the case, being one where the defendant essentially asserts either fraud or dishonesty by the plaintiff, is such that the plaintiff is likely to be vigorously cross-examined; including challenge to his credit. There are a number of lay witnesses as well; and 4. the COVID-19 pandemic is such that trial by virtual courtroom would be procedurally unfair. 1. The defendant generally adopted these submissions, but added that: 1. witnesses could be expected to look at a large range of documents; 2. given that the parties are likely to be represented by senior and junior counsel, it would cause inconvenience if they, and their instructing solicitors, appeared in different locations; 3. what might be called the "Pre COVID-19" practice was that where a party was to be subjected to credibility attack, the Court would not be inclined to have the party give evidence by audio-visual link; because of possible unfairness; and 4. the decision of Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 ("Capic"), which might be regarded as endorsing the use of virtual courtroom trial procedure in civil proceedings, is distinguishable because in that case the parties did not consent to the adjournment.