Dirani v Fenton [2000] NSWSC 595

New South Wales Supreme Court

CITATION : Dirani v Fenton [2000] NSWSC 595 FILE NUMBER(S) : SC 11144/95 HEARING DATE(S) : 20/04/98 - 03/10/98 JUDGMENT DATE : 29 June 2000

PARTIES : Khalil Dirani Harold Fenton JUDGMENT OF : Dowd J at 1

COUNSEL : Mr A. Bartley SC Mr R. McIlwaine SC SOLICITORS : Carol & O'Dea Egan Maclean & Co CATCHWORDS : Assessment of damages - general damages - economic loss Sharman v Evans (1977) 138 CLR 563 Malec v J C Hutton Ltd (1990) 169 CLR 638 CASES CITED : Todorovic v Waller (1981) 150 CLR 563 Griffiths v Kerkemeyer (1977) 139 CLR 161 Norris v Blake (1997) 41 NSWLR 49 DECISION : Findings of fact made; leave granted to finalise orders

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

29 June 2000

11144/95 - KHALIL DIRANI -v- HAROLD FENTON JUDGMENT 1 The plaintiff, Dr Khalil Dirani by way of Statement of Claim sought damages from the defendant for injury and loss suffered as a result of a shooting accident that occurred in February 1991 on the defendant's property. 2 Proceedings were instituted by the plaintiff on 16 September 1991 in the Tamworth District Court and on 27 February 1995 an order was made transferring the matter from the District Court to this Court. The hearing commenced on Monday 20 April 1998 on which day breach of duty was admitted by the defendant and an allegation of contributory negligence withdrawn. Damages remained in issue. 3 On 31 March 1998, the plaintiff by Notice of Motion had sought an order that a judge of this Court be appointed an examiner pursuant to Pt 27 r 1A SCR to examine a number of witnesses overseas. After some discussion between the parties the number of witnesses that evidence be taken from was reduced to two witnesses in Marseilles, France, Professors Martini and Santoni and three witnesses in Beirut, Lebanon, Drs Cherfan and Yachoui and Mr Haddad. 4 Orders were then made that subject to the concurrence of the Chief Justice, a Judge of this Court be appointed Examiner pursuant to Pt 27 r 1A SCR to examine in Paris Drs Santoni, Martini, Cherfan, Yachoui, as well as Mr Haddad, Dr Ghassan Chit Dirani, Mrs Souad Freiji and Ms Randa Dirani in Beirut. 5 The order however, did not receive that concurrence and on 6 August 1998 I made an order directing that an examiner be appointed to take the evidence overseas in lieu of a Judge. I further ordered the examiner to make a special report in relation to the examination before him with regard to the absence of any persons, or the conduct of any person at that examination, and that in particular the examiner record a witness' movements or demeanour at any particular time, or the witness' activities in reading documents or pausing before answering a question. I further directed that the examiner should not express an opinion about the credibility of a witness. 6 The evidence of those overseas witnesses I have referred to above were taken from 28 September 1998 to 3 October 1998. In March 1999 the evidence, both in video tape was played and a transcript thereof was admitted without objection and the hearing concluded. Judgment was reserved.