Peakhurst v Fox & Ors; Newton v Fox & Ors [2004] NSWCA 74

New South Wales Court of Appeal

CITATION : Peakhurst v Fox & Ors; Newton v Fox & Ors [2004] NSWCA 74 HEARING DATE(S) : 8 March 2004 JUDGMENT DATE : 8 April 2004

JUDGMENT OF : Sheller JA at 1; Tobias JA at 2; Pearlman AJA at 67 DECISION : In CA 40857/02 ; a) Appeal dismissed; b) Each party to bear its/his/her own costs of the appeal; In CA 40935/02; a) Appeal allowed; b) Orders 1 to 5 (inclusive) made by Maguire DCJ on 29 August 2002 and the orders for costs made by Maguire DCJ on 5 November 2002, be set aside; c) Order that there be a new trial in proceedings CA 4318/00 and 4541/00 filed in the District Court including those cross-claims in each of those proceedings which were the subject of appeals CA 40857/02 and CA 40935/02; d) Order that the costs of the first trial (other than in respect of the cross-claim by the appellant against the third respondent for damages for personal injury) abide the result of the new trial; e) Order that the first, second and third respondents pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 Act with respect to those costs if otherwise entitled thereto

CATCHWORDS : PRACTICE & PROCEDURE - procedural fairness - fair trial - where primary judge utilises unfavourable finding of credit against party without giving party chance to make submission - where primary judge imputes to Witness B unfavourable finding of party's credit vis a viz Witness A without giving party chance to make submission - whether deprived of possibility of successful outcome - new trial - APPEAL - new trial - civil jurisdiction - whether substantial wrong or miscarriage of justice - whether departure from rules of natural justice will entitle aggrieved party to new trial - whether compliance with rules of natural justice would have made any difference to the result - whether new trial would be a futility - inappropriateness of appellate court to deal with matters that will figure in new trial - inappropriateness of appellate court to exclude a party from new trial in circumstances where it is open to new trial judge to resolve matter in way that may make party liable - EVIDENCE - late admission of evidence - reopening case - Pt28 r8(3) District Court Rules - prejudice associated with late admission of evidence - inability to cure prejudice by adjournment - new trial - standard of proof - balance of probabilities - civil litigation - tort of assault District Court Rules 1970 (NSW) Employees Liability Act 1991(NSW) LEGISLATION CITED : Evidence Act 1995 (NSW) Home Invasion (Occupant's Protection) Act 1998 (NSW) Supreme Court Rules 1970 (NSW) Briginshaw v Briginshaw (1938) 60 CLR 336; Escobar v Spindaleri (1986) 7 NSWLR 51; Fox v Percy (2003) 77 ALJR 989 Hadid v Redpath (2001) 35 MVR 152 CASES CITED : Jones v National Coal Board [1957] 2 QB 55 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 New South Wales v Lepore (2003) 77 ALJR 558 State Rail Authority of NSW v Luckwell [2000] NSWCA 223 Stead v State Government Insurance Commission (1986) 161 CLR 141 Whisprun Pty Limited v Dixon (2003) 77 ALJR 1598 Peakhurst Inn Pty Limited PARTIES : Joshua Michael Fox Honeheke Gerald Newton Allianz Australia Workers Compensation (NSW) Ltd FILE NUMBER(S) : CA 40857/02; 40935/02 For Peakhurst Inn P/L - Mr Maconachie / Mr Kelly COUNSEL : For Honeheke Newton - Mr Kennedy SC / Mr Quickenden For Joshua Fox - Mr Earl For Allianz Australia - Ms Holz For Peakhurst Inn - Moray & Agnew, Sydney SOLICITORS : For Honeheke Newton - Demaine & Associates, Hurstville For Joshua Fox - McBridge Harle & Martin, Hurstville For Allianz Australia - A O Ellison & Co, Sydney