Mihaljevic v MX Hub Pty Ltd (Deed of Company Arrangement)

Decision date: 12 August 2025

Jurisdiction: Common Law

Before: Schmidt AJ

Decision: (1) That there be separate trials on the question of liability and the question of damages.
(2) That costs of the motion are costs in the cause.
(3) The parties are to confer about the further orders to be made for preparation of the matter for the hearing of liability.
(4) The matter is adjourned to the Registrar’s list on 16 September 2025.

Catchwords: CIVIL PROCEDURE – personal injury – application for separate trials of the questions of liability and damages – where parties agree that damages cannot be assessed until applicant is older – where respondent does not oppose or consent to trial being heard separately – orders made

Legislation Cited: Civil Procedure Act 2005 (NSW)

Cases Cited: Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430

Category: Procedural rulings

Parties: Mateo Ante Mihaljevic bhnf Raiha Mihaljevic (Plaintiff/Applicant)
MX Hub Pty Limited (Deed of Company Arrangement) (Defendant/Respondent)

Representation: Counsel:
P A Beale (Plaintiff/Applicant)
D F Villa SC (Defendant/Respondent)
Solicitors:
CMC Lawyers
DWF

File Number(s): 2023/247873

JUDGMENT

1. In August 2020, when he was only four years old, Mateo Mihaljevic suffered a brain injury when he was struck by a motorbike while he was with his father watching a motocross event at Eastern Creek. He fell unconscious, was hospitalised for some 48 hours, after which he was discharged into the care of his parents in the expectation that he had not suffered serious injury, but he suffered symptoms and behavioural changes which resulted in his referral to the Brain Injury Rehabilitation Service where he was assessed as having suffered a more serious injury than had earlier been identified.

2. Ongoing problems, treatment and assessment resulted in Mateo’s mother bringing these proceedings as his tutor in 2023.

3. This judgment deals with the motion which she brought in February 2025 seeking orders that separate trials be ordered for the questions of liability and damages. Expert advice which had been obtained suggesting that the question of the damages which a young child has suffered from a brain injury cannot properly be assessed until the child is older than Mateo is even now. There is no real issue between the parties about that.

4. The expert reports, which have been served, establish that there is a dispute about the damage which the brain injury suffered in the accident, caused this young child. There are questions about whether it may have triggered or exacerbated conditions, ADHD and possibly ASD, which he appears to suffer.

5. But there is no issue between the parties that the question of liability is now ready to be heard. The defendant does not oppose or consent to it being heard separately, accepting on the applicable principles that it would be open to the Court to make the orders sought as a matter of discretion.

6. Still, the defendant points to some matters which might lead the Court to refuse to make those orders, liability not having been conceded and the nature and extent of the damage which the accident caused being in real issue, given investigations which are yet ongoing and what experts have respectively advised.

The applicable principles

7. There is no issue between the parties about the applicable principles. They are those explained in Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430 at [26]:

“a. The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law;

b. The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51];

c. Whether such an order should be made is a matter for the Court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VicRp 62; [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7];

d. As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]-[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ;

e. In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s56) must be given effect;

f. Generally, all questions of fact and law should be determined at the one time. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]- [9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049;

g. Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported);

h. Factors that tend to support the making of an order, include that the separate determination of the question may:

i. contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings; and

ii. contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at 607).

i. Whilst the decision is ultimately one for the Court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J;

j. It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5; and

k. Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.”

The parties’ positions

8. The defence position was explained to be that there was no dispute that a duty of care was owed to the child. There has been no admission of breach, albeit that the accident was videotaped. But it is accepted that if there was a breach, the child was caused some damage as a result and that, if established, would therefore give rise to liability.

9. The case so advanced puts the parties into a position where it seems that any hearing on liability will be short, if required, and that there is even some possibility that an agreement about liability might be reached.

10. The parties also agreed that given all that is in issue in respect of damages and how that has to be assessed in the case of a child injured as Mateo was, that it may be up to six years before the hearing of damages can proceed. It is apparent that some case management steps could sensibly be taken to seek to address the difficulties which that might cause so far as evidence is concerned, in the meantime.

The orders sought must be made

11. Nevertheless, having considered the factors identified in Loretta in light of the evidence, I am persuaded that taking into account the applicable requirements of s 56 of the Civil Procedure Act 2005 (NSW), namely, the just, quick and cheap resolution of the real issues in the proceedings, as well as the requirements of the surrounding statutory provisions, that the just way forward, in the circumstances which arise to be considered, is to make the orders sought.

12. What appears in the expert reports in evidence, in my view, well establishes that there is a proper basis for that conclusion, considering what is likely to be involved in the determination of liability on the one hand, and the time, cost and delay before a hearing on damages can proceed, on the other.

13. The reports of the rehabilitation paediatrician, Dr O’Flaherty, the consultant physician in rehabilitation medicine, Dr Buckley, the clinical neuropsychologist, Associate Professor Batchelor, and the neurologist, Professor Riney, all establishing that it is premature to assess damages at Mateo’s present age and that this will have to await his further development.

14. In all of the circumstances, it also seems to me that justice demands that what is involved in the determination of the question of liability should not be delayed until the damages hearing is ready to proceed, and that its early resolution is of advantage, avoiding unnecessary delay.

15. The risks which always exist when there is long delay being that relevant evidence may not become available, may be lost or may become less reliable with the passage of time, support that conclusion. Of course, if liability were not to be established, which seems unlikely, considerable costs which would be incurred in the pursuit of damages claims, would be avoided.

16. That also supports the conclusion that the orders sought must be made.

Orders

17. For all these reasons I make the following orders:

18. That there be separate trials on the question of liability and the question of damages.

19. That costs of the motion are costs in the cause.

20. The parties are to confer about the further orders to be made for preparation of the matter for the hearing of liability.

21. The matter is adjourned to the Registrar’s list on 16 September 2025.

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