McDougall v Nominal Defendant [2020] NSWDC 194

McDougall v Nominal Defendant [2020] NSWDC 194

The joint application to vacate the hearing was dismissed because the COVID-19 pandemic did not provide sufficient justification to vacate the hearing, the proceeding was not shown to be unsuitable for virtual courtroom process, the involvement of multiple counsel and documents did not carry real weight, there was no evidence that an expert conclave before the hearing was impossible or impracticable, and the plaintiff's proposed MAS review could be accommodated by ordering the liability issues to be separately determined from damages.

Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Civil Proceeding Arising Out of an Alleged Motor Cycle Accident / Joint Application to Vacate the Hearing Listed for 18 May 2020 and List the Matter in the Gosford Sittings in August 2020
Outcome
Notice of motion dismissed; liability issues ordered to be separately determined from damages.
Legal Topics
['adjournment' 'vacation of Hearing' 'covid 19 Pandemic' 'virtual Courtroom' 'separate Determination of Liability and Damages' 'medical Assessment Service Determination']
['civil Procedure' 'motor Accidents'] ['adjournment' 'vacation of Hearing' 'covid 19 Pandemic' 'virtual Courtroom' 'separate Determination of Liability and Damages' 'medical Assessment Service Determination']

Case Brief

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Procedural Posture

Civil Proceeding Arising Out of an Alleged Motor Cycle Accident / Joint Application to Vacate the Hearing Listed for 18 May 2020 and List the Matter in the Gosford Sittings in August 2020

Legal Issues

  1. 1 ['Whether the COVID-19 pandemic justified vacating the hearing because trial by virtual courtroom would be procedurally unfair.' 'Whether the nature of the proceeding, including disputed liability, credibility issues, lay witnesses and engineering expert evidence, made it unsuitable for virtual courtroom process.' 'Whether the engineering expert conclave and joint report position justified vacating the hearing.' "Whether the plaintiff's proposed review of the Medical Assessment Service determination on non-economic loss justified vacating the hearing or could be addressed by separating liability from damages."]

Ratio Decidendi

The joint application to vacate the hearing was dismissed because the COVID-19 pandemic did not provide sufficient justification to vacate the hearing, the proceeding was not shown to be unsuitable for virtual courtroom process, the involvement of multiple counsel and documents did not carry real weight, there was no evidence that an expert conclave before the hearing was impossible or impracticable, and the plaintiff's proposed MAS review could be accommodated by ordering the liability issues to be separately determined from damages.

Court Disposition

Notice of motion dismissed; liability issues ordered to be separately determined from damages.

Orders

  • ['The notice of motion is dismissed.' 'Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the issues of liability are to be separately determined from damages.' 'The plaintiff is directed to notify the Court when it has lodged its application for review of the MAS determination.' 'The costs of the...