NYERLUCZ v DEI ROCINI [1995] NSWCA 340

NYERLUCZ v DEI ROCINI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 3 August 1995, 8 September 1995 [1995] NSWCA 340

Fresh evidence found after trial — Investigation at trial did not seek evidence from plaintiffs residential neighbours — After trial, residents volunteered to give important evidence

Appeal from Common Law Division — Application to adduce fresh evidence — Fresh evidence found after trial — Investigation at trial did not seek evidence from plaintiff's residential neighbours — After trial, residents volunteered to give important evidence — Held: Leave to adduce evidence on appeal.

ORDERS Leave to adduce fresh evidence on the appeal granted. The plaintiff/respondent to pay the costs of the motion of 3 August 1995.

Mahoney AP The plaintiff John Dei Rocini was injured in a motor vehicle accident for which he was entitled to recover damages from the defendant. There was, at the trial, serious contest as to the extent of the injuries suffered by him and accordingly as to the the damages to be awarded to him. On 22 December 1993 Grove J gave judgment for the plaintiff for $203,859.

The defendant appealed to this Court against his Honour's judgment. The plaintiff cross-appealed upon the ground that the damages were appealably inadequate.

After the judgment was given, the defendant became aware that the next-door neighbours of the plaintiff, Mr and Mrs Mulhearn, could and would give evidence suggesting that the plaintiff was much less seriously injured than at the trial he had contended. The defendant, by motion, sought an order that it have leave to adduce as fresh evidence at the trial the evidence of the next-door neighbours. Because of the nature of the issues involved, the Court directed that the motion be heard prior to the hearing of the appeal.