FRANKS and ANOR v BEREM CONSTRUCTIONS PTY LTD [1998] NSWCA 87

FRANKS v BEREM CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA, FITZGERALD AJA and HODGSON CJ in Eq 12 November 1998, 2 December 1998

[1998] NSWCA 87

Practice — Reference by Court to Referee — Factual Findings of Referee — When Reconsideration of Evidence Appropriate

Trial judge considering adoption of referee's report says "It is not the function of this court in considering whether to adopt the report to look at the transcript and the intricacy of the evidence".

Held (1) There are circumstances in which a court considering whether to adopt a referee's report should look at the detail of the evidence before the

referee, for example when it is seriously and reasonably contended that the referee has reached a decision which no reasonable tribunal could have reached, or that there was very significant evidence against the referee's decision that the referee has failed to deal with at all in his reasons.

(2) (Fitzgerald AJA dissenting) However, the trial judge's statement in its context did not amount to an appealable error.

(3) (Obiter) Even if an appealable error is found in such a case, the appeal court might not automatically allow the appeal, but rather would generally need to be satisfied that the error was material, in that it would or could reasonably have made a difference to the result.

Super v SJP Formwork (Aust) (1992) 29 NSWLR 549, Nine Network v Kennedy Miller Television, CA40641/93, 8/6/94, Flender (Australia) v Warman International, CA40342/95, 18/6/98, considered.

Priestley JA I have had the advantage of reading in draft the reasons of Hodgson CJ in Eq for proposing the appeal in this case should be dismissed and of Fitzgerald AJA for proposing that it be allowed. Fizgerald AJA agrees with Hodgson CJ in Eq's view of the relevant law, but reaches a different conclusion because of a somewhat different interpretation of the reasons of the trial judge.