Prokart Racing P/l v Shakya [2001] NSWCA 409 (19 November 2001)

Last Updated: 13 December 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: PROKART RACING P/L v SHAKYA [2001] NSWCA 409

FILE NUMBER(S):

40623/00;

HEARING DATE(S): 12.11.01

JUDGMENT DATE: 19/11/2001

PARTIES:

Prokart Racing Pty Limited T/as Prokart Racing - Claimant/Cross Opponent

Raju Shakya - Opponent/Cross Claimant

JUDGMENT OF: Sheller JA Hodgson JA Bryson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8446/98

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:

C.R. Hoeben SC/P. Stockley - Claimant/Cross-Opponent

A.J. McInerney - Opponent/Cross-Claimant

SOLICITORS:

Curwood & Partners - Claimant/Cross-Opponent

Andrew Fegent & Company - Opponent/Cross-Claimant

CATCHWORDS:

COSTS - respondent to Appeal obtained order revoking leave to appeal (and to cross-appeal) where the questions in the appeal lacked utility because respondent had commenced second proceedings in District Court - each party had contributed to procedural miscarriages - each party to pay own costs.

LEGISLATION CITED:

Motor Accidents Act 1988 s.52(1A) & s.53

DECISION:

Each party to pay own costs - see Para 18

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40623/01

DC 8446/98

SHELLER JA

HODGSON JA

BRYSON J

Monday 19 November 2001

PROKART RACING PTY LTD v. RAJU SHAKYA

Judgment (COSTS)

1 SHELLER JA: I agree with Bryson J.

2 HODGSON JA: I agree with Bryson J.

3 BRYSON J: On 12 November 2001 the Court was to hear an appeal and cross-appeal, by leave granted on 9 April 2001, from interlocutory orders made by her Honour Judge Sidis on 2 August 2000 in proceedings 8446 of 1998 in the District Court at Sydney. The orders gave the plaintiff, now the respondent, general leave to amend his Statement of Claim, leave to file and serve an Amended Statement of Claim on or after 31 January 2001 and leave to join McDonalds Australia Limited as second defendant, the joinder to take effect from 31 January 2001.

4 The Ordinary Statement of Claim was filed on 19 November 1998. The respondent claimed damages for personal injuries which he suffered on 24 February 1998 at a go-cart track at Kembla Grange conducted by the appellant. The respondent claimed that he was driving a go-cart in a competition organised by the appellant when the go-cart he was using was struck from behind by another go-cart, causing his go-cart to collide with a rubber tyre barrier, then with a metal pole, and to bounce backwards, causing him personal injury. The go-cart track is on premises controlled by the appellant, which admits persons onto the premises and allows persons to drive its go-carts on the track as part of its business. The respondent and the driver of the go-cart which collided with his, and other managers and employees of McDonalds Australia Limited, were attending a function called a Managers Day organised by or for McDonalds Australia Limited and its staff; no other persons were admitted to the appellant's premises or allowed to use the track at that time. The parties before the District Court agreed that the go-cart driven by the respondent (and I understand also the one driven by the other driver) was not a motor vehicle to which subs.27(5) of the Motor Accidents Act 1988 ("The Act") applied and that for that reason the Nominal Defendant was not involved in the claim under the Act. An effect of the concession was that it established that the track was not a public street. The appellant asserted and it appears that the learned Judge accepted that the go-carts were not registered motor vehicles and were not capable of being registered.

5 The respondent alleged that the appellant was negligent in respect of organising the race, and in the care, control and management of the race and the track, and gave many particulars of the alleged negligence relating to safety precautions, supervision, instruction, facilities, the lay-out of the track, the design and equipment of the go-carts, speed controls and many other particulars relating to management of the event. The particulars did not allege that the driver of the colliding go-cart was the agent of the appellant or that the appellant was for any reason vicariously liable for negligence of the driver.

6 Leave to amend was general but judgments given by the learned Judge on 19 July 2000 and 2 August 2000 show that her Honour had in view an amendment of the kind which was later made, in which further grounds for claims against the appellant were added as claims pursuant to the Act; and other amendments dealing with a release or purported release given by the respondent and with the Contracts Review Act 1980. The judgment of 19 July 2000 shows that the appellant opposed the amendment adding claims under the Act and argued that the respondent's claim did not fall to be determined under that Act.

7 Section 69 makes Part 6 Awarding of Damages apply to awards of damages in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, without, on the face of that section, limiting that application to cases where the Act requires that the vehicle be insured, or to cases for which the Act creates machinery for claims to be made against the Nominal Defendant where death or bodily injury arise out of the use of the motor vehicle on a public street. A similar observation can be made of the provisions in Pt.5 Claims and court proceedings to enforce claims, including the definition of "claim" in subs.40(1) and the provisions of s.53 Presumption of Agency. The legislation does not in express terms make any necessary connection between the provisions of Pt.5 generally and the concepts of compulsory insurance or of a public street.

8 The learned Judge stated the effect of an argument put to her for the appellant as:

"... that the scheme of the Motor Accidents Act is directed to motor accidents involving motor vehicles covered by compulsory third party insurance or those which are uninsured but which are required to be insured and capable of being insured."

9 For reasons stated, Judge Sidis expressed this view: "Thus it does seem to me that the plaintiff has at least an arguable proposition in the light of s.53" meaning that it was a reasonably arguable proposition for the respondent that the driver was deemed to be the agent of the appellant. The learned judge also said:

"In those circumstances I accept the plaintiff's arguments that the matter may well fall to be determined under the Motor Accidents Act 1988."

10 The object of directing that the amendment be made on 31 January 2001 more than 6 months after the decision and orders granting leave was to enable the respondent to give a further notice under s.52(1A) of the Act and wait out six months before making the amendment. The respondent claimed to have given notice on 10 January 2001 but her Honour was of the view that notice had not been given effectively.

11 The respondent filed an Amended Ordinary Statement of Claim on 31 January 2001. The respondent on the same day commenced new proceedings against the appellant, and alleged a cause of action in negligence in driving the colliding go-cart and agency or deemed agency for the appellant of its driver, based on s.53 of the Act. McDonalds Australia Ltd was made the second defendant in the new proceedings. The pleaded allegations of causes of action on which the respondent now wishes to proceed in the District Court are found partly in the Amended Statement of Claim in the first proceedings and partly in the pleadings in the second proceedings, but the claims against the appellant related to the Act are duplicated; they are made in both proceedings. The two proceedings have been consolidated, and the respondent's claims in the District Court will now be presented in the consolidated proceedings.

12 The respondent applied to this Court by Notice of Motion of 12 September 2001 for an order that leave to appeal granted on 9 April 2001 be revoked. After hearing argument the Court was of the view that leave to appeal should be revoked if several matters of concern in the conduct of the litigation generally were resolved by imposing terms upon the respondent in the order revoking leave. The matters dealt with by the conditions were of importance for the future conduct of the litigation in the District Court, although they may not have been resolved in an effectual way by decisions or by views expressed in any disposition of the appeal and cross-appeal. The Court did not regard the appeal and cross-appeal as suitable vehicles for resolving questions relating to the application of the Act or any particular provisions of the Act to claims in respect of a motor vehicle which was neither registered nor registrable arising out of an accident which occurred on private land and not on a public street. Nor did the Court regard the appeal and cross-appeal as suitable vehicles for deciding whether there are limits to the power of the District Court, whether absolutely or as exercised in this case, to give leave to amend an Ordinary Statement of Claim and to provide that the amendment is to be made and take effect at a future date after some events which are or may be elements of the plaintiff's cause of action shall have taken place. The order appealed from was interlocutory, it is possible that further facts relevant to the application of the Act might emerge at the trial of the proceedings, and the course taken by the plaintiff of giving a further notice under s.52(1A) and commencing second proceedings in the District Court appear to this Court to deprive these questions of present importance, notwithstanding that they are of general significance. The Court of Appeal revoked the appellant's leave to appeal and the respondent's leave to cross-appeal on conditions which were drafted by the parties and accorded with indications of the Court's views. Conditions in the order revoking leave gave effect to the Court's view that the duplication of claims was not appropriate.

13 There was no agreement of the parties with respect to costs. Senior counsel for the respondent contended that the Court should make costs orders to these effects:

(1) The respondent is to pay the appellant's costs thrown away by the hearings in the District Court on 19 July 2000 and 2 August 2000.

(2) The respondent should pay the appellant's costs of the appeal, the application for leave to appeal, the application to revoke leave to appeal and the cross-appeal.

14 The conditions of the order revoking leave have already dealt with the costs of the application before the District Court on 3 July 2000. On 17 July 2000 her Honour Judge Sidis completed the hearing of the application for leave to amend which had commenced on 3 July. She gave a decision on 19 July 2000 which led to further consideration and a further decision and orders on 2 August 2000. The costs of those two days can be dealt with by adding an additional condition to the conditions of the order revoking leave to appeal.

15 There have been several unfortunate procedural miscarriages. The respondent claimed that he gave notice, or attempted to give notice under s.52(1A) of the Act to the appellant on 10 January 2000 by sending the notice to the solicitors who were acting for the appellant in the District Court proceedings. Judge Sidis was of the view that this was not effectual; this holding did not finally dispose of the question for all purposes, but the holding is now academic. When the respondent and those advising him grasped that this was a difficulty they took the course of applying for leave to amend the Statement of Claim, and did not take other courses open, including giving a further notice under s.52(1A), waiting out a further six months and then commencing fresh proceedings. The appellant participated in the amendment application in the District Court, which was conducted at considerable length. While I do not apportion blame it is unfortunate that other procedural measures did not present themselves as alternatives to making such a large exercise of the amendment application. The respondent on 31 January 2001 took procedural steps which involved significant duplications of its claim. The appellant did not take measures in the District Court to compel the respondent to make any significant election, did not pursue procedural opportunities to deal with the duplication in the District Court, applied for leave to appeal to this Court and later consented to an order consolidating the proceedings. In my view the conduct of and measures taken by both parties have contributed, not necessarily with equal force, to a great deal of attention and time being given to an unproductive procedural stalemate which was not capable of producing a disposition of the merits or any final disposition.

16 Although the existence of the second proceedings was brought to the notice of the Court during the leave application it does not seem that either party pointed out to the Court the implications of the pendency of the second proceedings adverse to the utility of the proposed appeal against a procedural decision in the first proceedings. The later step of obtaining an order of the District Court consolidating both proceedings made the inutility of the appeal even clearer. The implications of the consolidation were readily available for both parties to see. I see it as an unfortunate course of events that the preparation of the appeal for hearing, and the concomitant costs, continued. The respondent shares responsibility for an insufficiently forceful presentation of the initial difficulties and the appellant bears responsibility for their continuance.

17 My view is that, whatever the ultimate disposition of the merits may be and whatever general order for costs may later be made, each party should bear its or his own costs of these unfortunate and unproductive procedural exercises.

18 In my view the Court should order:

(1) Condition (5) be added to the order of 12 November 2001 revoking leave to appeal in these terms:

(5) Notwithstanding order 7 of the orders of Judge Sidis of 2 August 2000 each party to proceedings 8446/98 is to pay its or his own costs of attendances in the proceedings on 19 July 2000 and 2 August 2000.

(2) Each party is to pay its or his own costs in the Court of Appeal of the application for leave to appeal, the application for leave to cross-appeal, the application to revoke leave to appeal, the application to revoke leave to cross-appeal, the appeal and the cross-appeal.

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LAST UPDATED: 13/12/2001