POLYCARPOU v AUSTRALIAN WIRE INDUSTRIES PTY LIMITED [NO 2] [1995] NSWCA 373

POLYCARPOU v AUSTRALIAN WIRE INDUSTRIES PTY LIMITED [NO 2]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, MEAGHER JA and HANDLEY JA 18 April 1995 [1995] NSWCA 373

PRACTICE & PROCEDURE — Court of Appeal — correction of orders — variation of orders affected by verdict for contributory negligence set aside by Court of Appeal — consequences for pre-injury interest and offer of compromise — held: (1) As the orders of the Court had not been formalised by entry, the Court could, and in the circumstances should, vary its earlier announced orders. Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 (CA), 394; (2) Varied orders made.

Kirby P. The history of the case is set out in the reasons which were published by the Court on 27 February 1995. See Polycarpou v Australian Wire Industries Pty Ltd, Court of Appeal (NSW), unreported; [1995] NSWJB 19. On that day I proposed eight orders which orders became the orders of the Court.

The appellant, Mr Polycarpou, has brought the matter back before the Court in order to have corrected certain of the orders. The orders have never been formally entered. No formal problem therefore arises in respect of the correction of the orders. Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 (CA) , 394.

It has, I think, been demonstrated that certain of the orders were made upon assumptions which now require correction in order to carry forward the logic of the reasoning of the Court. I, therefore, propose that the orders be corrected.

Four matters are in issue. The first concerns pre-judgment interest. The pre-judgment interest which was allowed by the primary judge conducting the trial with a jury (Smart J) was $111,754. However, as has now been made clear, that sum was calculated allowing for a deduction of 40 per cent being the 40 per cent for contributory negligence. That deduction followed the 40 per cent contributory negligence found by the jury.