De Gelder v Rodger

EX TEMPORE Judgment 1By notice of motion filed 17 November 2014 the first defendant seeks a stay of an order that I made on 3 October 2014 remitting this case to the Motor Accidents Authority of New South Wales to be dealt with according to law: De Gelder v Rodger & Ors (No 2) [2014] NSWSC 1355. In support of the notice of motion the first defendant reads the affidavit of Ian Robert Jones and a series of exhibits (marked IRJ1-IRJ7). 2The plaintiff opposes the order and relies on the appalling delay that has beset this case since 2005. He reads an affidavit of his solicitor which sets out the background of the matter and highlights the delay. 3The tortured chronology and unsatisfactory history of the case is set out in my earlier judgment at [4] - [21]. What that history shows is that the case has been bouncing between the tribunal, this Court, the Court of Appeal and most recently the District Court for a period of 9 years. The plaintiff was injured in a car accident on 24 August 2005. It seems that he was entirely blameless. He has been attempting to obtain damages since that time but there has been an ongoing dispute as to the extent of his disability, or to use the parlance of the statutory scheme, his "whole person impairment". 4The first defendant has filed written submissions under the hand of senior counsel who has had carriage of the case since 2010 when an appeal from a decision of Davies J was upheld in the Court of Appeal: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173; Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594. Those submissions spend some time helpfully explaining the jurisdiction of this Court to grant a stay. That jurisdiction is not in doubt: see s 67 Civil Procedure Act 2005 (NSW); r [51.44] Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). It is generally considered preferable for the party seeking the stay to approach the judge whose decision is subject to the application before proceeding to make an application before the Court of Appeal or, indeed, another judge of the division: Frith v Sipple (Court of Appeal (NSW),11 September 1978, unrep). That is because the Judge who made the original orders subject of the stay application is seized of the issues and the history of the case. 5I delivered judgment in the matter on 3 October 2014. At that stage there was an order staying the proceedings in the District Court: De Gelder v Rodger [2014] NSWSC 872 (Rothman J). When I delivered my judgment, senior counsel for the first defendant sought an order extending the stay of proceedings in the District court to allow his client to consider my judgment "possibly with an eye to appeal". I granted the extension of the stay until 10 October 2014. No application was made to stay the orders I made at that time or at any time until the notice of motion was filed on 17 November 2014. 6However, on 31 October 2014 (which is to say 28 days after I published my judgment) the first defendant lodged a notice of appeal in the Registry of the Court of Appeal. I understand that the matter is listed for directions on 4 February 2015. 7To this point, no application has been made for expedition of the appeal. 8Meanwhile the plaintiff has sought expedition of the matter before the Medical Assessment Service. I set out the contents of his solicitor's letter dated 31 October 2014 (as written): "We refer to the above matter and recent Supreme Court orders to revert this matter back to a Review Panel Assessment. We note prior correspondence that we request the matter be expedited. To date we have not received any notification as to the Review Panel convening. We confirm the matter came before his Honour Justice Levy who requested the parties write to the Motor Accidents Authority with a view to imploring upon them, the matter should be dealt with as expeditiously as possible. We further attach a copy of a detailed chronology setting out the history of this matter and in the circumstances we again request the matter be dealt with expeditiously." 9In his written submissions Mr Robinson sets out the bases upon which it will be put to the Court of Appeal that the decision I made contained "two significant errors" and was plainly erroneous in law. In fact, the submissions are couched in such a way that they appear to be attempting to persuade me of those matters. Needless to say, I do not accept those submissions. All of the matters raised in the submissions were subject to detailed arguments by senior counsel and were dealt with in the judgment. However, it is inappropriate (and some might think a little unseemly) for me further to contemplate that aspect of the application for the stay. If the application for a stay was predicated on the merits of the appeal alone, I would not grant it. However, grounds have been filed on the appeal and Mr Robinson tells me that he could argue the case tomorrow or, as he put it, that he is "ready to rock and roll". 10The real substance in the application was identified in a letter dated 14 November 2014 from the Crown Solicitors Office (who represents the Authority, that is the second defendant) to the solicitors for the first defendant. That letter notes that there had been no application for a stay of my judgment and that the plaintiff was seeking expedition in the proceedings before the Authority. It was correctly pointed out that "a determination from a newly constituted Review Panel could render your client's appeal otiose" and suggested that "your client may wish to consider obtaining a formal stay of the orders made on 3 October 2014. 11There are many authorities that hold that a stay is appropriate if refusal would render the appeal futile or if it would result in the subject matter of the action being lost. The authorities are collected in Ritchie's Uniform Civil Procedure Law at paragraph [51.44.15] and I need not collect them here. 12While the Medical Assessment Service indicated by letter of 10 November 2014 to the plaintiff's solicitor that "I am unable to comply with your request to refer this matter to a Review panel expeditiously" (IRJ6), the letter from the Crown Solicitors Office (IRJ 7) raises the possibility that, in the absence of a stay, a new panel may be constituted in accordance with my orders. This would potentially render the appeal otiose or futile. However, the plaintiff points to the following passage in the judgment of MacFarlan JA in the original decision overturning the decision of Davies J: "116 . In conclusion, I indicate that I do not accept the first respondent's argument (Written Submissions [27]) that it would be futile to allow an appeal because the second respondent has already made a further decision pursuant to orders that the primary judge made. If this Court sets aside the primary judge's orders that further decision of the second respondent will be of no effect and the earlier decision of 28 November 2008 will stand." 13Even accepting that, I can see real merit in Mr Robinson's submission that if a new panel issued a further certificate there would be potentially jurisdictional complications of a fundamental nature concerning the status of each of the certificates. Further, there is significant public expense in organising for a panel of three specialist doctors properly to review the significant body of material that has accumulated in this case. Obviously, for the panel to discharge their functions under the Act, it is necessary for all of the material to be considered closely by the panel. That strikes me as an expense that ought not to be duplicated unless it is necessary. 14For that reason it is appropriate to grant a stay of the second order made on 3 October 2014. 15In reaching that conclusion I have taken into account the plaintiff's entitlement to have this matter resolved quickly, the unfortunate history of the matter and the fact that the proceedings are extant in the District Court. 16In its correspondence and written submissions, the first defendant has indicated that it is "content to seek expedition of the Court of Appeal hearings". I propose to make it a condition of the stay that it does so. Mr Robinson has told me that the Red books for the Court of Appeal are already prepared and that the appellant's submissions are due this week. I also note the undertakings made this morning that, in making that application for expedition, the history of the matter as set out in the plaintiff's chronology (IRJ 5) and the fact that Levy DCJ is part heard after a hearing of many days will be brought to the attention of the Court of Appeal. Whether the application for expedition will be dealt with by the end of the year is doubtful but an undertaking has been made to file a notice of motion this week. At the latest, it should be ready to proceed on 4 February 2015 when the matter is before the Court of Appeal for directions. Whether the Court of Appeal accedes to such an application is not a matter in relation to which I can concern myself. But the first defendant should comply with its undertaking to prosecute the appeal with real speed. 17As to the question of costs of this motion, I propose to reserve the question pending resolution of the case in the Court of Appeal. Whether it is just to award costs against the plaintiff in the current circumstances turns to a significant degree on the merit of the contentions that the first defendant seeks to make as to the errors it asserts permeate my judgment. If the Court of Appeal took the view that there is substance in those complaints, certain costs ramifications may flow. If the Court of Appeal takes the view that there is no real substance in those complaints, then it would be unfair for the plaintiff to be burdened with an order for costs for resisting the first defendant's somewhat belated application for a stay of my orders. In view of the history of this case and the fact that it is part heard before Levy DCJ, it is hardly surprising that those who appear for the plaintiff sought to have the case dealt with quickly by the Motor Accidents Authority. The first suggestion that the first defendant would seek expedition of the hearing of its appeal was in the course of this application. 18The orders I make are: (1)Order number 2 made on 3 October 2014 is stayed pending the final determination of the Court of Appeal in Matter No 2014/321789 ("the appeal"). (2)The stay is conditional upon the first defendant making an application for expedition of the hearing of the appeal and prosecuting the appeal with due dispatch. (3)Costs are reserved pending resolution of the appeal.