REARDON v KOVACS [1996] NSWCA 445

REARDON v KOVACS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and CLARKE JA 2 December 1996

[1996] NSWCA 445

Mahoney P. This matter came before the Court this morning upon an application for an extension of time for filing an application for leave to appeal. In the circumstances, notwithstanding that the solicitor and the counsel involved perhaps misunderstood that the judgment was interlocutory and not final, it appears an appropriate case for the grant of extension of time.

The application for leave to appeal involves an understanding of what took place before the trial judge when the parties came before him and the jury on 5 September 1996. It is not necessary for me to recapitulate what then occurred. (The relevant circumstances are set forth in the pages 34 and the following pages of the transcript of evidence which is attached to the affidavit of Scott Jamieson of 20 November 1996 filed in this matter). In my opinion, what occurred resulted in a miscarriage at the trial.

As Mr Justice Clarke has pointed out during discussion, the jury initially brought in a verdict for the defendant, then changed under questioning by the judge, and concluded that they had found negligence. At least, that was an answer that theygave to the judge's questions. But they concluded that no damage had occurred, at least no monetary damage. (I use the phrase used by the foreperson of the jury). His Honour took this to mean that the jury's intention was to find negligence but to find for the defendant on the issue of damages. At least that is one view of what took place.

Whatever view the judge took, he came to the conclusion that there should be a new trial; that, I think, is clear. He then took the view that there should be a new trial limited to damages. In doing that, I think his Honour may not have been reminded of the fact that the defendant had raised the issue of contributory negligence which would have affected the quantum of damages to be awarded if the jury found for the plaintiff on the new trial but found for the defendant on contributory negligence. I do not think the failure to remind the judge of that at the time indicated an acquiescence or consent to a waiver of that point by the defendant. I think the matter was merely passed by without having been properly taken into account.