Seiko Australia Pty Ltd v Da Rin [2000] NSWCA 146

New South Wales Court of Appeal

CITATION : Seiko Australia Pty Ltd v Da Rin [2000] NSWCA 146 FILE NUMBER(S) : CA 41033/99 HEARING DATE(S) : 13 June 2000 JUDGMENT DATE : 13 June 2000

PARTIES : Seiko Australia Pty Ltd - Claimant Eugene Da Rin - Opponent JUDGMENT OF : Mason P at 23, 25; Heydon JA at 1; Clarke AJA at 24

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT Beazley JA JUDICIAL OFFICER :

COUNSEL : S G Campbell - Claimant E J Techera - Opponent SOLICITORS : Hunt & Hunt - Claimant Adrian F Guido & Co - Opponent

DECISION : The Notice of Motion filed on 7 April 2000 is dismissed; the claimant is to pay the opponent's costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 41033/99

MASON P HEYDON JA CLARKE AJA

Tuesday, 13 June 2000

SEIKO AUSTRALIA PTY LTD v Eugene DA RIN JUDGMENT

1 HEYDON JA: The claimant by Notice of Motion filed on 7 April 2000 seeks discharge or variation of orders made by Beazley JA on 27 March 2000. On that day, Beazley JA dismissed a Notice of Motion filed on 10 February 2000. That Notice of Motion sought two orders. The first was the stay of an order made by Gamble ADCJ that the claimant pay the opponent the judgment sum of $238,577.04 in District Court matter No 4018/98. The second was the stay of an order made by Gamble ADCJ that the claimant pay the opponent's costs of those proceedings. Each stay was to operate until the determination of the claimant's appeal against Gamble ADCJ's orders. 2 Beazley JA refused the first order after considering evidence and hearing full argument. She also refused the second order. She noted that no evidence had been placed before her as to why the order should be made and said that she made no adjudication in relation to that order on the merits. 3 She also ordered the claimant to pay the opponent's costs of the Notice of Motion. 4 The claimant seeks in this application the same orders as it sought from Beazley JA. As the claimant accepts, it must demonstrate at least that the principles in House v The King (1936) 55 CLR 499 are satisfied (see Wentworth v Wentworth (1994) 35 NSWLR 726 at 733 per Handley JA). It may be that it must demonstrate that Beazley JA misdirected herself in principle or that her orders were plainly wrong (see Wentworth v Wentworth at 731 per Mahoney JA) or it may be that it must demonstrate that the discretion vested in Beazley JA plainly miscarried (see Wentworth v Wentworth at 737 per Powell JA). 5 Before Gamble ADCJ the opponent claimed damages for personal injury. He was a contract builder carrying out work at the claimant's offices. He parked his car in a car park one morning and took the most direct route to the main entrance, ignoring appropriately graded and sealed access paths which he might have taken. The most direct route was down a grassed bank. He slipped and injured his left shoulder. 6 Gamble ADCJ found that the claimant was in breach of a duty of care to the opponent, but that the damages should be reduced by 40% by reason of his contributory negligence. The primary components in the judgment sum were for past and future loss of earning capacity. 7 The claimant did not ask Beazley JA to deliver formal reasons for judgment. Her reasons for refusing the first order sought emerged in the course of argument and may be summarised as follows.