Temiha v Sadebarth [1997] NSWCA 308

Temiha v Sadebarth

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 13 May 1997, 13 May 1997

[1997] NSWCA 308

Evidence — Weight and sufficiency of evidence — Witness said not to have been cross-examined on particular issue — Witness said not to have been contradicted on

issue — Whether trial judge bound to accept evidence of witness on issue.

Powell JA When this appeal was called on for hearing shortly before the luncheon adjournment, Mr H G Shore, who appears for the Respondent, sought to raise a preliminary question to be determined by the Court, that question being whether, having regard to the grounds taken in the Notice of Appeal, it was open to the Appellant to raise an argument that the learned trial judge, Studdert J, erred in finding, contrary to what was said to be the uncontradicted evidence of the Appellant, and the evidence of the Appellant which, so it was said, was not cross-examined upon, that it was improbable that the Appellant would - as he had stated was his intention - have returned to New South Wales if certain events were to occur. The relevance of the argument sought to be raised was that it was said that, having made that finding, his Honour, in reliance upon it, had proceeded to award an amount for economic loss which was less than it would have been had the Appellant's evidence been accepted.

Mr D J Higgs SC, who appears with Mr M. Fordham for the Appellant, submitted that ground 2 in the Notice of Appeal, which was in the following terms:

"The trial judge erred in finding that the plaintiff would not have returned to work in New South Wales had the accident not occurred. "

was sufficient to enable the Appellant to raise the argument which had been foreshadowed.

The view which, after considering the matter, the Court took was that that ground as framed would not support the argument which had been foreshadowed.