NEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY[No.2]; BAILEY v CRAWFORD [No.2] [1994] NSWCA 364

NEW SOUTH WALES MEDICAL DEFENCE UNION LTD vy CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY vy CRAWFORD [No.2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and SHELLER JJA 15, 16, 18 and 19 of 1993, 30 June 1994

[1994] NSWCA 364

Nature of Jurisdiction:

Second stage of part-heard appeals from judgments and orders entered in the Common Law Division of the Supreme Court (Enderby J) together with hearing of cross-appeal. See CL 13757/88 and CL 17289/80.

Motion for enlargement of appeal and grounds of appeal.

EVIDENCE - expert evidence - proper approach of appellate court - advantages of primary judge - whether judge sufficiently explained or justified his conclusion - failure to refer to certain conflicting expert opinions - whether such opinions overlooked - whether position of advantage of trial judge in respect of evidence extends to evidence of expert opinions - held: (Kirby P dubitante): The rules controlling the interference by an appellate court in the decision of a primary judge concerning his preference for the evidence of witnesses extends to the preference for the opinions of particular expert witnesses.

Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA); Wilsher v Essex Area Health Authority [1988] AC 1074 (HL) applied.

APPEAL - rehearing - appellate review - proper approach to - expert opinions - advantages of primary judge - influence of demeanour and impression - obligation to explain - held: (Kirby P dubitante): The appellate court may not interfe[rence - sic] unless the decision reached is inconsistent with incontrovertibly established facts or is glaringly improbable or demonstrates that the primary judge has not made proper use of his or her advantage.

Voulis v Kozary and Ors (1976) 50 ALJR 59 (HC); Fabre v Arenales and Anor (1992) 27 NSWLR 437 (CA) 449f referred to. Abalos v Australian Postal Commission (1990) 171 CLR 167; Louth v Diprose (1992) 175 CLR 621. Government Insurance Office of New South Wales v Luong, Court of Appeal (NSW), unreported, 2 April 1992 [1992] NSWJB 36 applied.