D'Ettorre v State of New South Wales [2016] NSWSC 179 | Case summary

D'Ettorre v State of New South Wales [2016] NSWSC 179 | Case summary | Zoe

Judgment Introduction

Before the court is a notice of motion of Mr D'Ettorre, the plaintiff, that was filed on 29 September 2015. It seeks, in a nutshell, that an issue in pending proceedings in this Court be determined separately, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). That issue is whether or not the State of New South Wales, the defendant, is estopped from denying certain facts, as a result of a judgment given by her Honour Judge Ashford in the District Court of New South Wales on 5 December 2006.
Although the substantive order sought in the motion was merely that that question be determined separately and before the trial, each party approached the hearing before me with a focus upon resolution of that substantive separate question. That was because the defendant had agreed with the plaintiff that the issue should be dealt with separately.
Despite that joint position, I informed the parties at the commencement of the hearing that I regarded the threshold question of whether the issue should be determined separately as an important one to which I should give my own consideration. For that reason, I heard oral submissions directed towards the threshold question, and, after the conclusion of the hearing, received a list of authorities agreed between the parties pertaining to the threshold question. Background
The background of the matter may be shortly stated, and was not disputed for the purposes of the threshold question.
For many years the plaintiff served as a police officer in the New South Wales Police Force. His position is that he was exposed to a number of traumatic incidents that led to him developing depression and post-traumatic stress disorder (PTSD).
Eventually, he retired early from the police force. As a result of that retirement, he sought early access to his superannuation. A precondition of that access was that there be a certification that he had been "hurt on duty", to use the phrase contained in s 1(2) of the Police Regulation (Superannuation) Act 1906 (NSW).
On 15 August 2005, a delegate of the New South Wales Commissioner of Police issued a certificate to the effect that the plaintiff had not been hurt on duty.
The plaintiff appealed against that certification to the District Court of New South Wales. The pleadings of each party in that appeal were placed before me on the hearing of the motion.
On 5 December 2006, her Honour made the following orders: Having duly considered the matters submitted, THE COURT - HEREBY: SETS ASIDE the decision made by the Delegate of the Commissioner of Police on 15 August 2005. FINDS the infirmity of "post traumatic stress disorder and severe major depressive disorder with melancholic features" to be 'hurt on duty' ORDERS the defendant to pay the plaintiff's costs as agreed or assessed. [bolding deleted] A judgment was delivered on the same occasion giving reasons for those orders, and it was placed in its entirety before me.
On 27 September 2013, the plaintiff filed a statement of claim in this Court, in which the State of New South Wales is named as the defendant. In a nutshell, the statement of claim pleads that the plaintiff has suffered psychiatric injury as a result of the negligence of the defendant, and is entitled to damages as a result.
The defendant filed a defence to that claim on 10 April 2014. In short, it denies that the plaintiff can make out the elements of negligence against the defendant; in the alternative pleads contributory negligence; and also pleads failure to mitigate damage on the part of the plaintiff. Importantly, pars 12, 13, and 14 of the defence are as follows: [12] The defendant makes no admissions as to the plaintiff's alleged loss, injury or damage and denies that the same were caused by anything done or admitted to be done by it. [13] Further in answer to the whole of the Statement of Claim and pursuant to section 5D(1) Civil Liability Act 2002 (Act), the defendant denies that any conduct of the defendant caused harm to the plaintiff and denies that the scope of the defendant's liability extends to the harm which the plaintiff alleges to have suffered. [14] The defendant denies that the plaintiff has suffered loss and damage pursuant to Part 2 of the Act or at all.
With the agreement of the defendant, the plaintiff has not filed a reply asserting that the defendant is estopped from pleading those matters. Rather, it was agreed by the parties that the more convenient course would be to apply jointly to have the question of estoppel determined separately, and, if that application were granted, thereafter resolve the controversy about estoppel well before the trial. Submissions of the plaintiff
The plaintiff submitted that it is appropriate for me to order that this question be determined separately. He emphasised that the question of whether any determination of her Honour estops the defendant from pleading any matter of fact is a pure question of law, and can be determined solely on the pleadings, judgment and orders in the District Court, and the pleadings in this Court.
In other words, it was said that no question of evaluation of evidence, or of assessment of credibility, or of the real issues in the trial, all of which should be vouchsafed to the trial judge, will arise in the determination of the separate question.
Secondly, it was accepted that, even if the plaintiff is correct, and the defendant is estopped by the judgment of her Honour from denying not only that the plaintiff has suffered psychiatric injury, but also from denying that it was caused by his duties, that will not be determinative of the proceedings. They will continue in an abridged form. Still and all, it was said that, if it be the case that the plaintiff is correct in saying that the defendant is not permitted to agitate those questions, that will obviate the need for the collation, preparation and presentation of a great deal of evidence before and at the trial. It would be convenient to both parties, it was said, if the question could be clarified well before the substantive hearing.
Thirdly, submissions were made about the substantive question of the validity of the claim of estoppel in order to inform the threshold question. That was to show that the claim itself is by no means baseless, and is worthy of separate determination before the trial.
In short it was said that the issue is purely a legal one; that it will occasion neither discourtesy nor disruption to the trial judge; that it is by its nature not amenable to re-visitation at trial on the basis of further or new evidence; that, if the plaintiff is correct, early demonstration of the proposition would be very convenient to both parties; and that the legal issue is intrinsically worthy of determination. Submissions of the defendant
As one would expect, in light of the joint position of the parties, many of the submissions of the defendant echoed those of the plaintiff.
It was said that it would indeed be convenient to the defendant to know well in advance of the trial whether there is any point in preparing and collating evidence with regard to the issues that are said to be the subject of estoppel.
It was also said that, so long as the plaintiff confines himself to the materials that I have discussed (that is, the pleadings, judgment and orders in the District Court, and the pleadings in this Court), then there can be no question of revisitation of the issue before the trial judge.
Conversely to the submission of the plaintiff, the defendant submitted that the claim of estoppel is doomed to fail; because I am determining merely the threshold question, I shall not pause to detail the bases upon which that was said to be the case. But it was said that, in those circumstances of alleged inevitable failure, it is convenient to dispose of the question promptly.
In short, for similar but not identical reasons, the defendant supported the separate resolution of the issue before the hearing of the trial. Determination
I have come to the view that the determination of this question of estoppel, if any, should not be separately determined. I consider that it should remain within the remit of the trial judge. That is so for the following reasons.
First, the agreement of the parties that the threshold question should be answered in the affirmative is significant, but not determinative.
Secondly, the "default position" is that all issues of fact and law should be determined together at the trial by the trial judge: Tallglen Pty Ltd v Pay TC Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142; AAI Ltd t/a Vero Insurance v Solarus Projects Pty Ltd (Receivers and Managers appointed) (in liq) [2014] NSWCA 168.
Thirdly, concomitant with that proposition is the fact that courts have traditionally been reluctant to sever issues: see Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [87]-[92], referring to Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].
Fourthly, with great respect to the submissions of the parties, I am not entirely confident that resolution of the question of any estoppel arising from the judgment of her Honour can be achieved without receipt and evaluation of evidence. In particular, I think there may be a possibility that determination of that question could depend upon the evidence that was placed, or able to be placed, by one or both parties before her Honour with regard to the question of the nature and extent of any injury of the plaintiff, and with regard to whether any such injury was caused by the performance of the duties of the plaintiff.
As well as that, I also consider that determining the effect of any estoppel upon the proceedings in this Court could well require an assessment of the issues in those proceedings, and that exercise may call for receipt and evaluation of the foreshadowed evidence in the pending trial.
Fifthly, even if the estoppel for which the plaintiff contends can be fully enforced against the defendant, that is by no means conclusive of the proceedings. Indeed, even if it be the case that, in accordance with the asserted estoppel, the defendant cannot deny that the plaintiff suffered injuries that can be described as "hurt on duty", that by no means forecloses the defendant from denying that it was negligent.
Sixthly, the parties accepted that the modern approach to separate determination of issues, even in regard to conclusive issues (such as a point pursuant to the Limitation Act 1969 (NSW)) is to eschew it: see Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533; Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 at [10] (Basten JA, with whom Meagher JA and Sackville AJA agreed). If that be the better approach to fully determinative issues, it is very hard to see that it would be appropriate to determine separately an issue which is not determinative of the litigation.
Seventhly, if either party is aggrieved by a separate ruling, one could expect that party to pursue an appeal against it, thereby fragmenting the proceedings themselves, and delaying resolution of the entire matter.
In summary, I accept that some considerations of convenience favour early resolution of this issue. But convenience to the parties is by no means the only factor that I am required to weigh in the balance.
For a number of reasons, I consider that the threshold question of whether the issue of estoppel should be determined before the substantive hearing should be answered in the negative. Costs
In the circumstances of the joint position of the parties having been rejected by me, each party should pay their own costs. Orders
I make the following orders: 1. The notice of motion of the plaintiff of 29 September 2015 is dismissed. 2. Each party must pay their own costs of the proceedings before me.

D'Ettorre v State of New South Wales

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