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. Mr Petty does not oppose an order in this form. I will accordingly give such a direction. Mr petty asks that a further direction be given that the appellant's written submission on the appeal be filed and served no later than four weeks before the date fixed for the hearing of the appeal to enable the respondent to assess in adequate time whether further material should be placed before the Court in addition to that included in the appeal books. This is a reasonable request and is not opposed by Mr Crumpton. Accordingly, I will direct the Registrar to settle the index to the appeal book in accordance with the request of the solicitors for the appellant. I give that direction on the basis that the appellant accepts the risks associated with the omission of any material that was before the learned Master at the trial. I indicate that these risks include the risk that the case may have to be adjourned in order to enable further material to be put before the Court with resulting orders as to costs thrown away. There is also the risk that in the absence of complete material the appellant may be unable to establish the existence of appellable error. 2 UNREPORTED JUDGMENTS The parties are agreed that the costs of this reference should be costs in the appeal. I therefore give the following directions:- 5 1. I direct that the Registrar settle the index of the appeal papers in accordance with the request of the solicitors for the appellant. Any material omitted at the request of the appellant is omitted at the appellant's risk. 2. I direct that the submissions of counsel for the appellant on the appeal 10 be filed and served not less than four weeks before the hearing of the appeal. 3. I order that the costs of this reference be costs in the appeal. 4. I direct that a copy of these reasons be included in the appeal book.