KIRKWOOD v NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES) [1994] NSWCA 167

KIRKWOOD v NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 2 May 1994

[1994] NSWCA 167

Handley JA This matter is before the Court to resolve difficulties which have arisen on the settlement of the index to the appeal books for an appeal from the assessment of damages by Master McLaughlin following a trial which ran for 26 days. The appellant, to achieve economies in the preparation of the appeal books, wishes to exclude a large amount of documentary material said to be relevant only to the question of the plaintiff's economic loss.

Mr Petty who did not appear for the defendant at the trial points to the possibility that cross examination of the plaintiff on issues relating to his economic loss, may include cross examination on documents sought to be excluded from the appeal books. Such cross examination may have influenced the Master in arriving at other findings. If the Master's findings of fact are based upon his assessment of the credibility and reliability of the plaintiff, he may face difficulties in his appeal because of the Abalos principle.

The respondent's attitude before the Registrar was that the material sought to be excluded should not, for this reason, be excluded. Hence the reference to this Court. In the course of discussion it has become clear that the appellant is willing to take the risk that the appeal papers may not include all the documentary material which the Court would need to assess the propriety of any findings by the Master as to the credit of the appellant. If the appeal papers are deficient the appellant may be unable to establish appellable error.

Mr Crumpton QC for the appellant appreciates this risk and is willing to accept it. For all I know, this may be no risk at all. He is willing therefore to accept a direction that the index be settled in accordance with the wishes of the appellant but at the appellant's risk.