ATIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 8

ATIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES

KIRBY P, SHELLER AND POWELL JJA 28 November 1994, 9 December 1994

[1994] NSWCA 8

APPEAL — credibility findings unidentified motor vehicle — judge rejects claims — disbelieves plaintiffs — held: Immune from appellate disturbance — no objective evidence casting doubt on correctness.

Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, applied.

PRACTICE and PROCEDURE - District Court - single motor vehicle accident - concurrent hearing of 2 claims - implied consent of parties to that course - held: No irregularity - belated challenge rejected.

EVIDENCE - medical notes - business record - properly admitted.

APPEAL - credibility evidence - motor vehicle accident - unidentified motor vehicle - plaintiffs allege unidentified motor vehicle backed into their vehicle and then departed - later report to police station - primary judge (Twigg DCJ) rejects claims - finds that plaintiffs have failed to discharge onus of proving claims - rejects truthfulness of plaintiffs on the basis of observations of demeanour - on appeal to the Court of Appeal - held

(1) The judge's conclusion, resting upon his impression of the witnesses, was in the circumstances immune from appellate disturbance

Abalos v Australian Postal Commission (1988) 171 CLR 167, applied;

(2) The judge gave adequate reasons for his decision.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), applied; Mifsud v Campbell (1990) 21 NSWLR 725 (CA), distinguished;

(3) The objective evidence, far from casting doubt on the judge's decision, reinforced and explained it;

(4) Appeals dismissed with costs.

PRACTICE AND PROCEDURE- District Court - motor vehicle claims - single incident - driver and passenger sue statutory corporation liable for injury caused by unidentified motor vehicle - passenger abandons claim against driver - common legal representation - evidence heard together - judge provides single reasons for dismissing claims of driver and passenger - held: No irregularity having regard to the way in which the proceedings were conducted by consent of the parties.