Transfield Construction v Peers [2008] NSWCA 215

New South Wales Court of Appeal

CITATION: Transfield Construction v Peers [2008] NSWCA 215

HEARING DATE(S): 16 July 2008

JUDGMENT DATE: 5 September 2008

JUDGMENT OF: McColl JA at 1; Campbell JA at 2; Barr J at 175

(1) Appeal allowed. (2) Set aside the judgment in the court below. DECISION: (3) Remit the matter to the District Court for re-trial. (4) Respondent to pay costs of the Appellant of the appeal. Respondent to have a certificate under the Suitors Fund Act 1951 if entitled. (5) Costs of the hearing in the court below reserved to the judge who hears the new trial.

CATCHWORDS: TORTS – Breach of statutory duty – availability of defence of contributory negligence to cause of action that accrued before Civil Liability (Personal Responsibility) Act 2002 took effect - PROCEDURE – Courts and judges generally – criteria for appeal against discretionary judgment – where trial judge permitted evidence by telephone – r 31.3 Uniform Civil Procedure Rules 2005 – where counsel for appellant did not object to reception of evidence by telephone in proceedings below - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – where significant conflicts in evidence – whether relevant evidence set out – whether reasons given for concluding plaintiff's account of events correct – whether question of how conflict in evidence should be dealt with addressed – whether consideration given to weight to be accorded to evidence of expert witness – where serious error in report of that witness – whether consideration given to effect of erroneous statement in expert's report on reliability of views expressed by other experts proceeding on basis that statement correct - NEW TRIAL – Particular grounds – whether conflicts in evidence and questions of credit can be decided on the transcript – whether any alternative to having a new trial