DAWSON v HALL [1994] NSWCA 80

DAWSON v HALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 2 and 3 November 1993, 29 July 1994

[1994] NSWCA 80

DAMAGES — interest — defendant submitted to condition of adjournment that interest on any judgment be backdated to 28 days after adjournment — order by trial judge pursuant to condition eighteen months later — whether correct — held: setting aside the order — (1) defendant's submission to the condition did not relieve trial judge from considering the appropriateness of the award of such interest; (2) the condition was oppressive as the usual order for pre-judgment interest would compensate the plaintiff for any financial prejudice due to the delay; (3) the effect of the order was to award interest in respect of future losses: Fire and All Risks Insurance v Callinan (1978) 140 CLR 427 applied; (4) the effect of the order was to award interest on past general damages contrary to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; (5) the award included interest upon interest contrary to s83A(2)(a) of the District Court Act 1973.

PRACTICE AND PROCEDURE — District Court Rules Pt28 R9 — expert's report — whether expert's report obtained through subpoena at the trial and used in cross-examination must have been served in accordance with rule before being admissible in the case of the party issuing subpoena — held: report admissible although not served — (1) the rule has no application to a report by an expert coming to a party's knowledge for the first time when produced on subpoena at the trial; (2) the rule applies to reports in the possession of a party twenty eight days before trial which that party intends, or may wish, to tender in evidence; (3) even if the rule did apply, the case was one where the trial judge's discretion should have been exercised to admit the report.