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. In all these circumstances, in my opinion, it is proper that there be a new trial and a new trial generally, not limited to damages. This would ordinarily be the basis on which the Court would grant leave to appeal. This being the Court's view, I have put to the parties whether, in order to save time and costs, it would not be appropriate for the parties by consent to accept that the judgment entered in the matter by the learned judge (namely a direction for a new trial limited to damages) should be set aside and by consent, the matter sent back to the District Court for a retrial generally. The parties have, in my opinion very sensibly and, I think inevitably, agreed that this should be so. I have outlined these matters so that there can be no misunderstanding of what has occurred and in order to indicate how what has occurred has come about. 2 UNREPORTED JUDGMENTS In the result therefore, I would propose that there be an extension of time so as to allow the notice of application for leave to appeal to be deemed to be filed within time. I would propose that leave to appeal be granted. I would propose that, that leave being granted, as the parties have consented as they have, the Court should noworder that the judgment below be set aside and that there be substituted by consent for that judgment an order that there be a new trial generally of the proceedings in the District Court. Counsel may desire to make submissions to the Court as to the order for costs which should be made but I would propose that they be the orders that be made at this stage. Clarke JA. I agree Mahoney P. As to the question of costs, the application for leave to appeal has been successful and accordingly that would ordinarily result in the costs of the application being costs in the new trial. Would it not be appropriate that the costs of today be costs in the new trial, that is the party who succeeds at the trial have the costs of these proceedings? I'm raising that for discussion by you without pressing it upon you. It may be that that is a convenient compromise order in relation to the matter. If not we will then have to consider separately the costs of the application for extension of time, the costs of the application for leave to appeal and then the costs of the orders which have been made by consent for the new trial. FELLER: We consent to that course of action. MAHONEY P: Is it the agreement that the costs of today, including the application for extension for leave to appeal and setting aside of the judgment by consent, follow the costs awarded in the new trial in the sense that whoever wins below will get the costs of today in those matters? I think that's a very sensible course and a convenient course to follow. FELLER: There's still the question of the costs in the aborted trial. MAHONEY P: They would follow the event in the second trial. Was an application made for a certificate under the Suitors Fund Act, application necessary for that purpose? Maybe you'll have to make a separate application, I'm not sure whether the Act now operates automatically or whether you have to have an application but counsel can make a note so that it's not forgotten. Well, the orders of the Court will therefore be as I've indicated. Orders accordingly.