Chapman v Gibbo’s Transport Pty Ltd & Ors (No 3) [2023] NSWSC 754

Chapman v Gibbo’s Transport Pty Ltd & Ors (No 3) [2023] NSWSC 754

The application for separate determination of liability and damages was dismissed because liability findings would not dispose of the whole proceeding, the plaintiff would likely have to give evidence twice despite having suffered a traumatic brain injury, severance would likely cause delay in a proceeding arising from a 2016 accident, there was a real prospect of an appeal on liability, and it was not clear that severance would achieve the just, quick and cheap resolution of the dispute. Leave to file the proposed third cross-claim was granted because, on the limited evidence, Qube had an arguable triable claim concerning the extent of QBE's indemnity, including costs and breach of...

Jurisdiction
Australia
Judgment Date
30 June 2023
Procedural Posture
Civil Procedure Notice of Motion in Common Law Proceedings / Application by the Second Defendant for Separate Determination of Liability and for Leave to File a Third Cross Claim
Outcome
The second defendant's application for a separate determination under r 28.2 was dismissed, but leave was granted to file and serve the third cross-claim; costs of each party were costs in the cause.
Legal Topics
['separate Question' 'separate Trial of Liability and Damages' 'leave to File Cross Claim' 'ctp Policy Indemnity' 'motor Accidents Compensation Act 1999']
['civil Procedure' 'motor Accidents Compensation' 'insurance'] ['separate Question' 'separate Trial of Liability and Damages' 'leave to File Cross Claim' 'ctp Policy Indemnity' 'motor Accidents Compensation Act 1999']

Case Brief

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Procedural Posture

Civil Procedure Notice of Motion in Common Law Proceedings / Application by the Second Defendant for Separate Determination of Liability and for Leave to File a Third Cross Claim

Legal Issues

  1. 1 ['Whether the question of liability should be heard and determined in advance of and separate from the question of damages under r 28.2 of the Uniform Civil Procedure Rules 2005.' 'Whether the second defendant should be granted leave to file a third cross-claim against QBE Insurance Australia Limited concerning indemnity under a CTP policy and alleged breach of contract.']

Ratio Decidendi

The application for separate determination of liability and damages was dismissed because liability findings would not dispose of the whole proceeding, the plaintiff would likely have to give evidence twice despite having suffered a traumatic brain injury, severance would likely cause delay in a proceeding arising from a 2016 accident, there was a real prospect of an appeal on liability, and it was not clear that severance would achieve the just, quick and cheap resolution of the dispute. Leave to file the proposed third cross-claim was granted because, on the limited evidence, Qube had an arguable triable claim concerning the extent of QBE's indemnity, including costs and breach of...

Court Disposition

The second defendant's application for a separate determination under r 28.2 was dismissed, but leave was granted to file and serve the third cross-claim; costs of each party were costs in the cause.

Orders

  • ["I dismiss that part of the second defendant's motion seeking an order pursuant to r 28.2 of the UCPR." 'I grant leave to the second defendant to file and serve the third cross-claim found at annexure "A" to its motion within 7 days, i.e. by 6 July 2023.' 'The third defendant is to file and serve a defence to the...