WATER RESOURCES COMMISSION v GRAHAM [1992] NSWCA 265

WATER RESOURCES COMMISSION v GRAHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 13 May 1992, 22 May 1992

[1992] NSWCA 265

JURY — VERDICTS — WHETHER VITIATED BY CONDUCT OF SHERIFF'S OFFICER The respondent was injured in the course of his employment with the appellant. The trial was before McInerney J and a jury of four. Liability was admitted.

After the jury retired to consider its verdict it had some contact with a sheriff's officer. This included the sheriff's officer, upon request, lending the jury a calculator and demonstrating how to work out percentages on it.

1. The appellant sought to have the jury's verdict set aside on the basis that the conduct of the sheriff's officer constituted an irregularity such as to cause a miscarriage of justice.

2. In the alternative the appellant sought to have the rate of interest allowed on the economic loss component altered from 7% to 2%, in line with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657.

Held:

1. The conduct of the sheriff's officer was an irregularity but was not an irregularity such as would, of itself, be seen as likely to give rise to a suspicion that there had been a miscarriage of justice.

2. As the parties had agreed on the interest rate on the basis of the law as it stood at that time, it was not open to them to challenge it on appeal.

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Piening v Wanless (1968) 117 CLR 498 Eggins v Brooms Head Bowling and Recreational Club Ltd (1984) 5 NSWLRMorawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374 R v Chaouk (1986) VR 707 David Syme and Co v Swinburne (1909) 10 CLR 43 R v Ketteridge (1915) 1 KB 467 R v Hodgkinson (1954) VLR 140 Emmett v Masland (1988) 33 A Crim R 340 Davies (1991) 53 A Crim R 122

Clarke JA I agree with the orders and reasons of Sheller JA. Handley JA I agree.