Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51

HIGH COURT OF AUSTRALIA

FRENCH CJ

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

MATINA LUJANS APPLICANT

AND

YARRABEE COAL COMPANY PTY LTD & ANOR RESPONDENTS

Lujans v Yarrabee Coal Company Pty Ltd

[2008] HCA 51

16 October 2008

S3/2008

ORDER

1. Special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 December 2007 is granted, the appeal is treated as having been heard instanter, and the appeal is allowed. 2. The orders made by the Court of Appeal are set aside. 3. The matter is remitted to the Court of Appeal for a rehearing of the respondents' appeal to that Court. 4. The respondents are to pay the costs of the applicant in the special leave application and the appeal to this Court. 5. The costs of the appeal to the Court of Appeal which led to the orders of 4 December 2007 be in the discretion of the Court of Appeal on the rehearing.

On appeal from the Supreme Court of New South Wales

Representation

B M Toomey QC with S J Longhurst for the applicant (instructed by Russell McLelland Brown)

C T Barry QC with G J Davidson for the respondents (instructed by McCabe Terrill Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lujans v Yarrabee Coal Company Pty Ltd

Torts – Causation – Road accident – Whether road deceptive due to defendants' maintenance – Whether driver error constituted contributory negligence – Whether driver error sole cause of accident.

Courts – Jurisdiction and powers on appeal – Court of Appeal of Supreme Court of New South Wales – Whether rehearing under Supreme Court Act 1970 (NSW), s 75A(5) properly conducted – Whether failure to conduct real review of trial.

Courts – Jurisdiction and powers on appeal – Court of Appeal of Supreme Court of New South Wales – Conduct of rehearing – Whether evidence and trial judge's findings adequately considered – Whether original photographs relied upon – Whether inconsistent evidence taken into account.