ALLEN v ALLEN [1990] NSWCA 5

ALLEN v ALLEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and HANDLEY JJA 15 February 1990, 15 February 1990

[1990] NSWCA 5

APPEAL — wrongful admission of evidence — application for new trial — what constitutes substantial wrong or miscarriage — RSC P 51 r16 — Balenzuela v De Gail 101 CLR 226 discussed.

Samuels JA From 1970 until November 1984 the appellant and the respondent, theplaintiff and the defendant as I will call them, had lived together as wife and husband in a de facto relationship.

On 19 December 1982 an incident occurred in which, according to the plaintiff, the defendant struck her in the face and inflicted a not insubstantial injury upon her, including a fracture of the zygoma. The defendant's account is somewhat different, asserting that there was a scuffle between them, in the course of which the plaintiff scratched her face and then fell, striking her face on a filing cabinet in the room, by means of which her injury was sustained. Notwithstanding this event, the parties remained together until November 1984, when they separated.

In July 1984 the plaintiff issued a statement of claim in which she sought damages for trespass to the person based upon the incident which I have shortly described. To that process the defendant filed a cross claim alleging an assault by the plaintiff.

These proceedings came to trial on 6 October 1988 before McInerney J and a jury. The jury found a verdict for the defendant in the action. The note in the appeal book as to the fate of the cross claim is enigmatic but we understand that the jury rejected that also.

In the course of the trial the following took place. While the plaintiff was being cross examined by Mr Ward QC, she was asked:

"Q. You separated in October 1984? A. November 1984. Q. You were paid $70,000 by the defendant, were you not?"