MULVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 166

MULVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA 26 May 1992, 16 June 1992 [1992] NSWCA 166

APPEAL FROM DISTRICT COURT — Correctness of Judge's findings Delivery of reasons for judgment. CORRECTNESS OF JUDGE'S FINDINGS — Findings based on evidence as to who was driving motor vehicle — Judge rejected plaintiff's evidence — Whether Judge based his decision upon his conclusion as to the credit or the character of the plaintiff — Held: No error in fact finding processes. DELIVERY OF REASONS FOR JUDGMENT — Judgment delivered Reasons for judgment given some days later — Error of law because reasons not given when judgment delivered — Effect of that error — Held: Not to require new trial (Mahoney and Clarke JJA, Sheller JA dissenting) — Proceeding returned to District Court for delivery of judgment and reasons together.

Mahoney JA On 16 October 1984 the plaintiff suffered an injury. He claimed that the injury occurred whilst a third party, "Joe", was driving a truck of which he was in charge. On 14 March 1986 he sued the Government Insurance Office of New South Wales upon the ground that his injury arose out of the negligent use of the truck. On 23 November 1990, after a hearing of the plaintiff's claim, his Honour Judge Viney QC concluded that the plaintiff had not discharged the onus of proof that lay upon him and "found a verdict for the defendant on the primary issue of liability". Subsequently, on 12 December 1990, his Honour transmitted to the parties his reasons for what he had done.

The plaintiff has appealed to this Court against the judgment which, it has been assumed, was entered for the defendant upon what had been done. The amended notice of appeal submits that there should be a retrial of the plaintiff's claim for a number of reasons. Those reasons are divided into two categories: I shall describe them as reasons going to merits and to procedure. The court has heard argument as to each of these categories of grounds in the notice of appeal.