Liverpool City Council v Estephen

CATCHWORDS: PRACTICE AND PROCEDURE - application to join parties to appeal - Uniform Civil Procedure Rules 2005 51.4(3)

Civil Liability Act 2002 Civil Procedure Act 2005 Compensation to Relatives Act 1897 LEGISLATION CITED: District Court Act 1973 Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

Penrith White Water Stadium Limited v Lesvos Enterprises Pty Limited [2007] NSWCA 131 CASES CITED: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 Tomko v Palasty (No. 2) [2007] NSWCA 369

Liverpool City Council (applicant/appellant) Estephen Estephen as the Administrator of the Late Jocelyn Estephen (first respondent) Charles Estephan (second respondent) Joanne Estephan (third respondent) PARTIES: Estephan Estephan (fourth respondent) Joseph Azzi (fifth respondent) Mary Azzi (sixth respondent) Lynsey Finch (seventh respodnent) Rock Excavations & Plant Hire Pty Limited (eighth respondent)

P Menzies QC/J Alewood (applicant/appellant) COUNSEL: D Russell QC (first respondent) G Miller QC/CL Thompson (second - sixth respondents) R Stitt QC /H Stitt (seventh - eighth respondents)

McCabe Terrill Lawyes (applicant/appellant) SOLICITORS: TL Lawyers (first respondent) Carroll & O'Dea (second - sixth respondents) Sparke Helmore (seventh - eighth respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2125/04; 2124/04

LOWER COURT DATE OF DECISION: 10 July 2007, 26 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWDC 285

• 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040518/07 CA 040519/07

Monday 29 September 2008 Liverpool City Council v Estephen Estephen as the Administrator of the Late Jocelyn Estephen & 7 Ors Judgment 1 McCOLL JA: This is an application by Liverpool City Council pursuant to a Notice of Motion filed on 2 September 2008 seeking a review of the decision of Registrar Schell made on 4 August 2008. On that date the Registrar was considering the Council's Notice of Motion seeking leave to add new parties to the appeal, leave to file and serve a Further Amended Notice of Appeal and, if required, an extension of time to file and serve the latter document and also an order dispensing with compliance with Uniform Civil Procedure Rules 2005 51.2(2).

2 The appeal arises out of the determination, as a separate question, of the liability of the parties in relation to a motor vehicle accident which occurred in 2001. The motor vehicle accident involved two motor vehicles, one of which was driven by a Mrs Estephen who was killed in the accident, as was one of her children. The other car was driven by Mr Finch who was employed by Rock Excavations & Plant Hire Pty Limited ("Rock Excavations").

3 Six statements of claim were filed in the District Court. Liverpool City Council, Rock Excavations and Mr Finch were the defendants in each. Those proceedings were commenced by Mrs Estephen's direct family and by her parents, Mr and Mrs Azzi. In each proceeding, the Council filed a cross-claim against Mrs Estephen's estate seeking an order that she had been guilty of contributory negligence in respect of the accident.

4 Neilson DCJ, who heard the separate liability question common to each of the six proceedings, held that the Council was guilty of negligence to the extent of eighty per cent and that Mr Finch and Rock Excavations were guilty of negligence to the extent of twenty per cent. He dismissed the cross-claim against Mrs Estephen's estate. The Council commenced two appeals from Neilson DCJ's determination on the cross-claims - appeals numbered 40518 and 40519 of 2007 respectively. The only party joined to each of those appeals was Mr Estephen Estephen, as executor and administrator of Mrs Estephen's estate.

5 In February 2008, counsel provided Mr Gibbons, the Council's solicitor, with a draft of Amended Notices of Appeal and written submissions in relation to the extant appeals. After perusing those submissions, Mr Gibbons says it became apparent to him that other parties would have to be joined in the appeal, having regard to UCPR 51.4. I will not detail the intermediate chronology. It appears that there was a great deal of to-ing and fro-ing between Mr Gibbons' decision that further parties needed to be joined and when the matter finally came before the Registrar that may become a relevant consideration in due course.

6 Mr Gibbons swore an affidavit of 4 August 2008 to which was annexed the proposed Further Amended Notice of Appeal upon which the Council sought to rely. That Further Amended Notice of Appeal, as I understand the evidence, was the first such a document served on the respondents to this motion. It identified Ms Sharlene Estephen, Ms Joanne Estephen, Mr Estephen Estephen and Mr and Mrs Azzi as the proposed second to sixth respondents and Mr Finch and Rock Excavations as the seventh and eighth respondents. It also challenged Neilson DCJ's apportionment of liability as between Mr Finch, Rock Excavations and the Council and sought consequential relief in that respect. In short, the proposed Further Amended Notice of Appeal was the vehicle through which the Council sought to add, what I will call for convenience to the extant appeals, the Estephen family and Mr Finch and Rock Excavations as parties, to the extant appeals and also sought to add orders directly seeking relief against Mr Finch and his employer.

7 Part 51.4 of the Uniform Civil Procedure Rules 2005 provides that each person who is directly affected by the relief sought, or is interested in maintaining the decision of the court below, must be joined as a respondent. Pursuant to s 13 of the Civil Procedure Act 2005 the Chief Justice has delegated to the Court of Appeal Registrar this Court's function in relation to UCPR 51.4(3) which concerns the addition or removal of any party to an appeal. That was the function the Registrar was exercising on 4 August 2008.

8 When the matter was called on for hearing, Mr Stitt of Queens Counsel, who appeared for the proposed seventh and eighth respondents, submitted that, as a single judge of this court, I lacked jurisdiction to consider or to entertain a review of the Registrar's decision. He relied upon Penrith White Water Stadium Limited v Lesvos Enterprises Pty Limited [2007] NSWCA 131, a decision of Basten JA in which his Honour considered the extent to which he had power, sitting alone, to review an order of the Registrar striking out a Notice of Contention. It is apparent that the matter which concerned Basten JA was that the power the Registrar exercised in that case was exercised as a single judge pursuant to Pt 51.58 of the Supreme Court Rules 1970. That rule enabled the Registrar to exercise the powers of a Judge of Appeal under s 46(1) and (2) of the Supreme Court Act. When it became apparent that the power the Registrar was exercising in this case was that delegated to him by the Chief Justice to which I have referred, Mr Stitt did not pursue the jurisdiction point.

9 It is apparent that Mr Finch and Rock Excavations are interested in maintaining the decision below and directly affected by the relief sought in the proposed Further Amended Notice of Motion to the extent that orders are sought to adjust Neilson DCJ's apportionment of liability. Mr Miller of Queen's Counsel, who appears for the Estephen family, does not gainsay the proposition that the Estephen family is directly affected by the relief sought for reasons which can be briefly explained.

10 The cross-claim against Mrs Estephen's Estate sought to assert that she had been guilty of negligence in respect of the motor vehicle accident. If she had been that would constitute contributory negligence for the purpose of any Compensation to Relatives Act claims, some of which at least, as I understand it constitute one or other of the six sets of proceedings on foot before the District Court. Section 5T of the Civil Liability Act 2002 provides that in any claim for damages brought under the Compensation to Relatives Act 1897 the court is entitled to have regard to the contributory negligence of the deceased person.

11 Further, as I understand the facts, Mr Estephen, at least, seeks to recover damages in respect of psychological injury. It appears to be common ground that s 30 of the Civil Liability Act 2002 could have the effect of reducing the damages which might be awarded in relation to his psychological injury claim to the extent that Mrs Estephen may, in due course, be found to have been guilty of contributory negligence.

12 There is one other matter. The judgment as between the Council and the Estate on the cross-claims was a final one. Mr Russell of Senior Counsel, who appears for the Estate, accepts that that is so and that the Council's appeals from that judgment lie as of right. The position may well be different as between the Council and Mr Finch and Rock Excavations. The separate determination of the proceeding between them did not finally resolve the dispute as between the parties, there still being the matter of damages to be determined: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 (at 439-440).

13 Although this matter was not debated at length, I think the better view is that that as between Mr Finch, Rock Excavations and the Council, the judgment on negligence and apportionment was an interlocutory one which, by virtue of s 127(2)(a) of the District Court Act 1973, requires the leave of this Court to enable the appeal to proceed. It is clearly undesirable, however, in my view, that what I will call the cross-claim appeals be delayed for the determination of a separate leave application in relation to that proposed appeal. It is better, that, to the extent that leave is necessary in relation to that aspect of the appeals, that any application for leave be heard as a concurrent hearing with the principal appeals.

14 The Registrar refused to accede to the Notice of Motion because of his concern that leave to appeal was required. At that stage he appears to have been concerned that leave was required even on the cross-claim appeals because the council had not filed an affidavit pursuant to UCPR 51.2(2) demonstrating that that appeal involved $100,000 or more. In fact, one of the orders which the Council sought before the Registrar, as I have indicated, was relief from the obligation to file such an affidavit. Mr Menzies of Senior Counsel who appeared for the Council today has filed in court an affidavit of Mr Gibbons of 26 September 2008 purporting to comply with that obligation. I do not think, therefore, I am trammelled by the concerns which troubled the Registrar in that respect.

15 The Registrar also declined to grant relief because of the respondents' complaint that the orders sought on appeal lacked specificity. In considering that submission, the Registrar appears to have had regard to an earlier Amended Notice of Appeal which did not join or purport to join the proposed second to eighth respondents to this motion nor seek orders against the seventh and eighth respondents. 16 The Registrar did advert briefly to the proposed Further Amended Notice of Appeal which, to my observation, cured the deficiencies of the earlier document insofar as parties and orders were concerned, but returned to the issue of leave and concluded that the appropriate way forward was for the Council to seek an extension of time for leave to appeal and, if necessary, have what he described as the current appeals, which I assume was the cross-claim appeals, joined to that process.

17 The power to review a Registrar's decision is found in UCPR 49.19. Such a review is not an appeal subject to s 75A of the Supreme Court Act 1970. It does not require demonstration of error and is not, I should add, restricted to a reconsideration of the material before the primary judge: Tomko v Palasty (No. 2) [2007] NSWCA 369.

18 Accordingly, while I am conscious of the matters which troubled the Registrar, I do not need to opine as to whether or not he erred in that respect. In my view it is appropriate that the parties named as the proposed second to eighth respondents to the Further Amended Notice of Appeal be added as parties pursuant to UCPR 51.4(3). The Council should also be given leave to file the Further Amended Notice of Appeal in the form attached to Mr Gibbons' affidavit of 4 August 2008. 19 Mr Miller expressed concern about the possibility that the hearings of the appeals will have an adverse effect, as I understand his submission, on the hearing of the damages appeals. Mr Menzies has indicated that for his client's part it is content for the damages aspect of the hearings to proceed in the District Court notwithstanding the pendency of the appeal. 20 The ultimate outcome of the liability appeal may affect the distribution of the burden of who bears the costs but it may also have the effect of reducing for the reasons I have sought to explain the damages in the District Court. There may be therefore a moot point as to whether the damages hearings can proceed while the appeal is extant. That is a matter I cannot resolve today. 21 The Registrar ordered the Council to pay the first respondent's, that is, the Estate's costs on the ordinary basis but ordered the Council to pay the second to eighth respondents' costs on an indemnity basis. 22 Mr Menzies concedes that the Council should have been ordered to bear the costs of the application before the Registrar, but submitted that it ought not to have been ordered to pay those costs on an indemnity basis.

23 As I understand the Registrar made that order because he was persuaded that the Council had been in default in complying with consent orders made by the Court on 14 April 2008 in respect to the filing and serving of written submissions. It appears that the Council's submissions had not in fact been filed until after the second to eighth respondents had themselves complied with those consent orders, notwithstanding the Council's default.

24 Although it is not expressly adverted to in the Registrar's decision, I infer that he concluded that the second to eighth respondents had been prejudiced by reason of that default in their preparation for the proceedings before him. In those circumstances although as I have earlier said it is not necessary that on a review I discern error in the Registrar's orders in this respect, I do not think it appropriate to interfere with the order the Registrar made in relation to costs.

25 Insofar as today's proceedings are concerned, Mr Menzies seeks an order that the respondents pay the Council's costs. In my view that is not an appropriate order. As to the first respondent, the Estate, it has taken a neutral position in relation to the Notice of Motion. The Estate had to be a party to the Notice of Motion because it affected the appeals which were extant as against it. It is appropriate that the Council should pay the first respondent's costs of the review.

26 As to the second to eighth respondents each has been brought here again effectively because when the appeals were originally filed insufficient consideration was given to who would be affected by the orders sought and who therefore should be joined as parties to the proceedings. In addition, insofar as Mr Finch and Rock Excavations are concerned, once it was determined that orders should be sought against them, it was necessary that they should be parties to the appeal. It does not appear that consideration was given to whether leave was required in relation to that aspect of the proposed reconstituted appeal. It was only today that Mr Menzies accepted that if leave be required then it would be sought. Further, one of the matters which influenced the Registrar in denying the relief sought was the absence of a UCPR 51.22 affidavit, a matter which again was only sought to be cured by the service of Mr Gibbons' affidavit sworn on Friday.

27 Annexed to Mr Gibbons' affidavit were two letters, both from the Council's solicitors, one to Messrs Sparke Helmore, the solicitors for Mr Finch and Rock Excavations, the other to Messrs Carroll & O'Dea, the solicitors for the Estephen family. Each in effect sought to agitate the compelling logic of agreeing to the course which had been canvassed before the Registrar without incurring further costs.

28 On 26 August 2008 Messrs Carroll & O'Dea wrote to the Council's solicitors referring to their letter and noting that at a mention in the District Court they had learned that the Council was considering applying for a review. They sought copies of any documentation which had taken that aspect forward. Otherwise I have not been taken to any particular replies to either of those letters but it is apparent from what has occurred today that those requests were not and would not have been acceded to for the reasons which counsel for the second to seventh respondents have agitated. 29 Significantly, neither the letter to Messrs Sparke Helmore nor that to Messrs Carroll & O'Dea adverted to either matter of leave as it had been agitated before the Registrar. Those were matters, which as today's proceedings have demonstrated, had to be dealt with one way or the other and in my view it is appropriate in those circumstances that, the Council's conduct having forced the matter back to Court, it should bear the costs of today's proceedings. I do not, however, think that those costs should be ordered on an indemnity basis. The issue was well and truly joined before Registrar Schell and although some matters were only finally resolved today I do not think the second to eighth respondents have been prejudiced in the same sense that Registrar Schell concluded they were when he made his indemnity costs order.

30 Accordingly, I make the following orders: (1) Leave granted to the Council to file and serve Further Amended Notices of Appeal in the form annexed to the affidavit of Mr Gibbons of 4 August 2008. (2) Leave granted to the Council to add as new parties to the appeal those persons identified as the second to eighth respondents in the Further Amended Notice of Appeal annexed to Mr Gibbon's affidavit of 4 August 2008. (3) Any application for leave to appeal insofar as the Further Amended Notice of Appeal seeks orders against Mr Finch and Rock Excavations and Plant Hire Pty Limited to be heard concurrently with the appeals the subject of the Further Amended Notices of Appeal. (4) Dispense with the requirement that the appellant file a White Book in either extant appeal. (5) Submissions as to the leave issue should be included in the parties' written submissions in the Orange Book. (6) Expedite the hearing of the appeals. (7) Council to pay all respondents' costs of the review on the ordinary basis.

02/04/2009 - 1. Full stop inserted end of first sentence 2. Legislation references amended - Paragraph(s) Par [3]Par [10]

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