SARA v BALASUBRAMANIAN [1995] NSWCA 417

SARA v BALASUBRAMANIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY JA and ROLFE AJA 29 March 1995, 12 April 1995

[1995] NSWCA 417

COURTS and JUDGES — procedural fairness — out-of-pocket expenses announcement of agreement — judge does not allow — meaning of agreement — HELD: (by maj): Departure from procedural fairness — new trial ordered.

PRACTICE and PROCEDURE — Court of Appeal — supplementing record — dispute between lawyers — meaning of recorded agreement.

MOTOR VEHICLES — insurance — duty to pay reasonable expenses.

COURTS and JUDGES — fair trial — procedural fairness — entitlement of party to — personal injuries damages action — parties announce that out-of-pocket expenses are agreed in the sum of $9,615.60 — primary judge (Mahoney DCJ) makes allowance for $4,135 — derives verdict for $15,835 — deducts $8,531.60 as full amount paid by insurer — enters judgment for $7,304 — dispute as to meaning of announced agreement of the parties not resolved by evidence in Court of Appeal — judge fails to raise with the parties directly his rejection of evidence flowing from the agreed out-of-pockets announced — on appeal to the Court of Appeal against the judgment entered in pursuance of the verdict — HELD: (Rolfe AJA; Kirby P concurring; Mahoney JA dissenting): (1) Upon the face of the agreement announced by the parties and the plain terms of the agreement it was a departure from the requirements of procedural fairness to conclude that the agreed figures should not be included in the verdict; (2) Assuming evidence was available to supplement the record, none was provided so that the agreement must be construed according to its terms. Builders' Licensing Board v Mahoney (1986) 5 NSWLR 96 (CA); Vakauta v Kelly (1988) 13 NSWLR 502 (CA); Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 (CA) considered; (3) Having regard to the exchanges at the trial concerning only the rate of charges made for certain medical expenses, it was not open, without due notice to the parties to reject the inclusion of the agreed out-of-pockets in the verdict; (4) The departure from procedural fairness was not insubstantial and a reassessment by the Court of Appeal on the record was not available; (5) Accordingly, a new trial should be had limited to damages.