LUTWYCHE v JIWENI PTY LTD [1998] NSWCA 131

LUTWYCHE v JIWENI PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 27 May 1998, 30 July 1998

[1998] NSWCA 131

Practice and Procedure — Jury trial — Jones v Dunkel direction — Misdirection to jury — Failure to object to direction — Importance of misdirection to an issue in the case — whether new trial should be ordered.

Negligence — Occupiers liability — Employer — Breach of statutory duty — Factories Shops and Industries Act 1962 (NSW) s34.

On 23 December 1983 the appellant fell through a trap door while working at the Burton Hotel, St Johns Road, Glebe. She sued the respondent, Jiweni Pty Ltd (Jiweni), on the basis that it was both her employer and the occupier of the premises, for negligence and for a breach of statutory duty pursuant to s34 of the Factories Shops and Industries Act 1962.

Jiweni conceded that whoever was the employer was negligent. Therefore, the primary issue before the jury was who was the occupier of the premises, the employer of the appellant or both at the time of the accident. The answer was unclear because although Jiweni had sold the business prior to the accident, there was evidence to suggest Jiweni was still running the business.

The appeal was concerned with what were said to be misdirections made by the trial Judge to the jury and the application of the principle of Jones v Dunkel (1959) 101 CLR 298.

Held:

1. The trial Judge misdirected the jury in relation to the evidence given by Jiweni's accountant: Jones v Dunkel (1959) 101 CLR 298, Payne v Parker (1976) 1 NSWLR 191.

2. The importance of the misdirection to an issue in the case means that a proper balancing of the interests of justice requires that there be a new trial.

3. The Court should have evidence put before it that provides such explanation as is required for the failure, at the proper time and in the proper form, an objection upon which it is sought to rely on the hearing of the appeal: cf R v Hines (1991) 24 NSWLR 737. If the cause of the failure is uncontentious, a statement in the appellant's submissions will suffice. If there is disagreement, an affidavit should be filed in sufficient time to allow the respondent to determine whether cross examination or a responsive affidavit is required.