Wacker v Van Dyke t/as Vandyke Racing; Wacker v Dr Albany [2022] NSWSC 1020

Wacker v Van Dyke t/as Vandyke Racing; Wacker v Dr Albany [2022] NSWSC 1020

The adjournment was granted because failure to investigate the possible brain injury in a timely manner was not deliberate and resulted from solicitor error, and refusing the adjournment would risk injustice and an unfair trial; costs of the adjournment and hearing days were ordered payable by the plaintiff but not forthwith, without indemnity, and set off against any eventual judgment in the plaintiff’s favour.

Parties
Plaintiff: David Wacker; Defendant: David Van Dyke t/as Vandyke Racing; Defendant: Dr Malcolm Albany
Jurisdiction
Australia
Judgment Date
28 July 2022
Procedural Posture
Personal Injury / Interlocutory (adjournment Application and Related Interlocutory Orders)
Outcome
Adjournment granted; interlocutory and costs orders made
Legal Topics
Adjournment, Costs, Interlocutory Applications, Production of Documents, Pleadings Amendment
Civil Procedure Personal Injury Law Adjournment Costs Interlocutory Applications Production of Documents Pleadings Amendment

Case Brief

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Parties

David Wacker

Plaintiff

David Van Dyke t/as Vandyke Racing

Defendant

Dr Malcolm Albany

Defendant

Procedural Posture

Personal Injury / Interlocutory (adjournment Application and Related Interlocutory Orders)

Legal Issues

  1. 1 Whether an adjournment should be granted to allow the plaintiff to investigate a potential brain injury claim
  2. 2 Appropriate orders as to costs following an adjournment
  3. 3 Whether indemnity costs or a stay of proceedings should be ordered

Ratio Decidendi

The adjournment was granted because failure to investigate the possible brain injury in a timely manner was not deliberate and resulted from solicitor error, and refusing the adjournment would risk injustice and an unfair trial; costs of the adjournment and hearing days were ordered payable by the plaintiff but not forthwith, without indemnity, and set off against any eventual judgment in the plaintiff’s favour.

Court Disposition

Adjournment granted; interlocutory and costs orders made

Orders

  • By 29 July 2022 the plaintiff is to produce all records required in notices to produce of 19 April 2022 and 22 July 2022.
  • By 3 August 2022 Mr Weller is to provide the defendants with logs of all documents he produced under subpoena, packet S-29, over which privilege is claimed.