SIMMONDS v SPOONER [No. 3] [1995] NSWCA 429

SIMMONDS v SPOONER [No 3] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, CoLe JA and ROLFE AJA 28 March 1995, 28 March 1995 [1995] NSWCA 429

EVIDENCE — unadmitted evidence — credit in issue judge uses affidavit not read in trial — relevant to credit — held: Irregularity requires retrial: GIO v Bailey (1992) 27 NSWLR 51 (CA) considered.

NATURAL JUSTICE — procedural fairness — use of affidavit not read at trial — relevant to evidence — held: retrial ordered. Stead v State Government Insurance Commissioner (1986) 161 CLR 141.

EVIDENCE — evidence not admitted at trial — trial judge (McInerney J) finds against credit of plaintiff in personal injuries damages action — refers in the course of his reasons to an affidavit filed in the Court — no earlier reference to the affidavit during trial — affidavit not formally tendered or read in the trial — affidavit used before registrar in earlier proceedings for expedition of hearing of the appeal — complaint of departure from rules of procedural fairness — whether admitted departure deprived plaintiff of possibility of a successful outcome — held (1) The use of evidence, which was not formally admitted in the trial, was an irregularity and the failure to provide the plaintiff with the opportunity to answer or make submissions thereon was a procedural irregularity. Escobar v Spindaleri (1986) 7 NSWLR 51 (CA); Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (CA); Mikic v Government Insurance Office of New South Wales, unreported, Court of Appeal (NSW), 12 December 1994; [1994] NSW JB 112 appld; (2) The irregularity was not one which the plaintiff had waived or which could not possibly have affected the outcome of the trial. Australian and Overseas Telecommunications Ltd v McAuslin (1993) 47 FCR 492 (FC) consd; (3) Accordingly, a new trial must be ordered.