Crisp v. Burridge [2004] NSWCA 334

New South Wales Court of Appeal

CITATION : Crisp v. Burridge [2004] NSWCA 334 HEARING DATE(S) : Dealt with on written submissions in Chambers JUDGMENT DATE : 20 September 2004

JUDGMENT OF : Sheller JA at 1; Hodgson JA at 2; Santow J at 8 DECISION : The following order made, in addition to the four orders made on 21 July 2004: 5. Matter remitted to the District Court for a new trial, limited to the question of liability, before a different judge, with the costs of the first trial being in the discretion of that judge.

CATCHWORDS : PROCEDURE - Whether appeal court should resolve disputed questions or order new trial. CASES CITED : Cassis v. Kalfus (No.2) [2004] NSWCA 315 PARTIES : Cheree-Ann Crisp - appellant Brett Michael Burridge - respondent FILE NUMBER(S) : CA 41135/03 COUNSEL : Mr. P. R. Arden SC for appellant Mr. T.E.F. Hughes QC with Mr. T.D.F. Hughes for respondent SOLICITORS : Ferguson Lawyers, Sydney for appellant G.H. Healey & Co. Mascot for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC1856/01 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41135/03 DC 1856/01

SHELLER JA HODGSON JA SANTOW JA

Monday 20 September 2004 CRISP V. BURRIDGE (On Additional Order) Judgment 1 SHELLER JA: I agree with Hodgson JA. 2 HODGSON JA: In the judgment in this matter given on 21 July 2004, I tentatively proposed an order which would finally dispose of the proceedings. The appellant has supported the making of the order, but the respondent has strongly opposed it. 3 In my opinion, in cases such as this, it may be appropriate for an appeal court to resolve disputed questions of fact, even where credibility issues are involved: see Cassis v. Kalfus (No.2) [2004] NSWCA 315. However, that possibility was not addressed during the hearing of this appeal; and in my opinion, having regard to the written submissions of the respondent, there would need to be a substantive further hearing of the appeal if the Court was to consider taking that course in this case. 4 In those circumstances, in my opinion the appropriate course is for the Court to remit the matter to the District Court, for a new trial before a different judge. 5 The tentative views I expressed in par.[42] of the judgment were given without the benefit of submissions, and should be considered as carrying no weight. They were proposed in the hope that finality might be achieved, without the incurring of further costs. 6 The respondent has sought an order that the evidence of a witness given at the previous trial be read. In my opinion, that will be a matter for the trial judge to consider. The respondent also submitted that the new trial be limited to the question of liability. In circumstances where the quantum of damages depends heavily on the credibility of the respondent, and the reason why the respondent seeks a new trial is so that credibility can be determined by a judge who hears evidence from both sides, I would not normally have regarded this as an appropriate course. However, the appellant has also requested that the issues be confined to liability including negligence and contributory negligence; and in those circumstances, I will so order. 7 Accordingly, the following order should be made, in addition to the four orders made on 21 July 2004: 5. Matter remitted to the District Court for a new trial, limited to the question of liability, before a different judge, with the costs of the first trial being in the discretion of that judge. 8 SANTOW JA: I agree with Hodgson JA. **********