NINE NETWORK PTY LTD v KENNEDY MILLER TELEVISION PTY LTD [1994] NSWCA 235

NINE NETWORK PTY LTD v KENNEDY MILLER TELEVISION PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and HANDLEY JJA 6 May 1994, 8 June 1994 [1994] NSWCA 235

PRACTICE — REFERENCE BY COURT TO REFEREE — APPEAL — appeal to Court of Appeal against errors said to exist in referee's report — scope of appeal from decision of judge adopting report of referee assessing damages

CONTRACTS — principles relevant to computation of damages for breach — The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, Poseidon Pty Ltd v Adelaide Petroleum NL (1994) 68 ALJR 303 referred to

PRACTICE — REFERENCE BY COURT — APPEAL — A judge of the Commercial Division referred a contractual dispute to a referee for assessment of damages. The referee's report was made and adopted. On appeal to the Court of Appeal the appellant argued that any error of fact or law that could be shown to exist in the referee's report vitiated the judge's decision and could therefore be relied upon on appeal.

HELD

1. The appeal was from the decision of the judge, not the referee.

2. The appellant had to show error on the part of the judge.

3. Having regard to the principles enunciated in Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605 and Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 such error might be

(a) error on a question of law;

(b) error in the exercise of discretion as to the adopting of the referee's report;

(c) if the primary judge had made decisions of fact, error of fact.

4. It was not enough for the appellant to show error on the part of the referee.

5. In any event, in the present case no such error had been shown.

Gleeson CJ This appeal raises for decision the question of the nature and scope of an appeal from a judgment of a member of a Division of the Court adopting, and giving effect to, the report of a referee appointed pursuant to Pt72 of the Supreme Court Rules. That question was identified in Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 649 at 658, but it did not arise for determination in that case, and was not the subject of argument. It was, therefore, left unanswered.