Australia Post v Cairns [2000] NSWCA 154

New South Wales Court of Appeal

CITATION : Australia Post v Cairns [2000] NSWCA 154 FILE NUMBER(S) : CA 40837/98 HEARING DATE(S) : 14 June 2000 JUDGMENT DATE : 14 June 2000

PARTIES : Australia Post (Claimant) John Paul Cairns (Opponent) JUDGMENT OF : Meagher JA at 16; Stein JA at 1; Foster AJA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3663/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : D D Feller (Claimant) D A Wheelahan QC/C R Burge (Opponent) SOLICITORS : Vardanega Roberts (Claimant) Beston Maken McManis (Opponent)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : Leave to appeal granted; Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40837/98 MEAGHER JA STEIN JA FOSTER AJA Wednesday, 14 June 2000 AUSTRALIA POST v John Paul CAIRNS JUDGMENT

1 STEIN JA: This is an application for leave to appeal from a decision given by Garling DCJ granting leave to the opponent, John Paul Cairns, to proceed pursuant to s 52 of the Motor Accidents Act 1988 to commence proceedings more than three years after the date on which the accident, to which the claim related, occurred. 2 It is agreed between the parties that if leave is granted the court will proceed to hear the appeal and, for that purpose, we have heard full argument from Mr Feller, counsel appearing on behalf of the claimant, Australia Post. 3 The proceeding has considerable history set out, in part, in his Honour's judgment and in more detail in a useful chronology prepared for the purpose of the application for leave to appeal. 4 The draft notice of appeal alleges two particular errors by his Honour. The first, and in my estimation probably the most important, is ground 4 which alleges that his Honour incorrectly inferred from the evidence that a Mr John Gosling, the driver of a vehicle in the employ of the claimant and involved in the accident suffered by the opponent was not a material witness to the accident. I will return to what his Honour found with respect to Mr Gosling in a moment. 5 The second principal ground of appeal claims that his Honour's discretion, which he was exercising, miscarried because his Honour did not give adequate consideration to whether there was significant prejudice to the claimant and whether a fair trial was now possible. 6 There are other grounds in the proposed notice of appeal but each of them, grounds 3, 5 and 6 [I leave aside the general ground No.1] alleges a misattribution of weight by his Honour. I do not need to remark that where one is appealing against the exercise of a judicial discretion, it is difficult to succeed on 'weight' arguments. 7 Returning to what his Honour said about Mr Gosling. It is to be found at p 5 of the judgment. His Honour said: It seems to me, having considered the evidence in this case, that Mr Gosling did not see the accident. Whilst he now says he has no memory, there is a brief statement from him but it does not appear to advance the plaintiff's or the defendant's case any further. 8 The material which his Honour was referring to is, firstly, a handwritten statement from Mr Gosling obtained by Australia Post on 24 September 1991. It is headed 'Incident at International Airport 29.12.89' and reads as follows: