Pan v Kuhn [2011] NSWDC 8

Pan v Kuhn [2011] NSWDC 8

The application to vacate the hearing date was refused because the defendant failed to demonstrate that any new or additional relevant material had emerged to justify a MAS reassessment, the delay in bringing the application was not satisfactorily explained and involved tactical ambush, and no procedural unfairness would be remedied by vacating given the defendant’s opportunity to prepare earlier.

Parties
Plaintiff: Ying Pan; Defendant: Brendan Kenneth Kuhn
Jurisdiction
Australia
Judgment Date
08 March 2011
Procedural Posture
Interlocutory Application / Application to Vacate Hearing Date Prior to Scheduled Final Hearing
Outcome
Application dismissed with costs
Legal Topics
Application to Vacate Hearing Date, Medical Reassessment Under Motor Accidents Compensation Act 1999 S 62(1)(a), Case Management, Untimely Application, Prejudice and Procedural Fairness
Practice and Procedure Application to Vacate Hearing Date Medical Reassessment Under Motor Accidents Compensation Act 1999 S 62(1)(a) Case Management Untimely Application Prejudice and Procedural Fairness

Case Brief

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Parties

Ying Pan

Plaintiff

Brendan Kenneth Kuhn

Defendant

Procedural Posture

Interlocutory Application / Application to Vacate Hearing Date Prior to Scheduled Final Hearing

Legal Issues

  1. 1 Whether new or additional relevant information has arisen to justify MAS reassessment under s 62(1)(a) Motor Accidents Compensation Act 1999
  2. 2 Whether the delay in making the application to vacate the hearing date is satisfactorily explained
  3. 3 Whether the state of the particulars concerning the claim for economic loss justifies vacation of hearing date

Ratio Decidendi

The application to vacate the hearing date was refused because the defendant failed to demonstrate that any new or additional relevant material had emerged to justify a MAS reassessment, the delay in bringing the application was not satisfactorily explained and involved tactical ambush, and no procedural unfairness would be remedied by vacating given the defendant’s opportunity to prepare earlier.

Court Disposition

Application dismissed with costs

Orders

  • The application by the defendant for the vacation of the hearing date is dismissed.
  • The applicant defendant is to pay the costs of the respondent plaintiff on the ordinary basis unless an entitlement to some other order can be shown.