Divall v Mifsud [2005] NSWCA 447

New South Wales Court of Appeal

CITATION: Divall v Mifsud [2005] NSWCA 447

HEARING DATE(S): 25/07/05

JUDGMENT DATE: 14 December 2005

JUDGMENT OF: Ipp JA at 1; McColl JA at 7; Campbell AJA at 11

DECISION: 1. Verdict and judgment of Judge Armitage set aside; 2. The matter to be remitted to the District Court for a new trial limited to the issue of liability including contributory negligence; 3. Damages be assessed at $162,100; 4. The costs of the first trial to be determined by the judge hearing the retrial; 5. The respondent to pay 80 percent of the appellant's costs of the appeal and cross appeal and to have a Certificate under the Suitors' Fund Act 1951 if otherwise entitled.

CATCHWORDS: Appeal and New Trial - Error of law - Process of reasoning not exposed in reasons for decision - Justice not appearing to be done - Legal professional privilege - Evidence Act 1995 section 122 - Waiver by Counsel not taking objection in cross-examination.

Evidence Act 1995 LEGISLATION CITED: Motor Accidents Act 1999 Suitors' Fund Act 1951

Malco Engineering Pty Ltd v Ferreira (Supreme Court March 1994 unreported) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2000] NSWSC 430 Tesltra Corp v Australia Media Holdings [No 2] (1997) 41 NSWLR 346 Sovereign v Bevillesta [2000] NSWSC 521 CASES CITED: Application of Cannar [2003] NSWSC 802 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Eden Productions v Southern Star Group (2002) NSWCS 116 March v Stramare (E & M H) Pty Ltd (1990 - 1991) 171 CLR 506 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Multicon Engineering Pty Ltd v Federal Airports Corp (CA 15 October 1997 unreported) HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640