Dyldam Developments Pty Limited v Jones [2008] NSWCA 56

New South Wales Court of Appeal

CITATION: Dyldam Developments Pty Limited v Jones [2008] NSWCA 56

HEARING DATE(S): 6 March 2008, 7 March 2008

JUDGMENT DATE: 8 April 2008

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Basten JA at 77

(1) Dyldam's appeal dismissed with costs. DECISION: (2) Bricklaying's cross-appeal upheld in part. (3) Each party to pay their own costs in relation to Bricklaying's cross-appeal, and the plaintiff to have a certificate under the Suitor's Fund Act in respect of his own costs. (4) The parties to bring in Short Minutes to give further effect to this judgment.

CATCHWORDS: APPEAL – Challenge to findings of fact and primary judge's reasons – Whether reasons disclosed errors or were insufficient. - EVIDENCE – Document tendered at trial which should have been produced earlier on subpoena – inability of other party to test evidence without adjournment – Document rejected pursuant to s135 of the Evidence Act 1995 – Whether danger that the evidence might be unfairly prejudicial or cause undue waste of time. - DAMAGES – Economic loss – Pre-accident tax returns showing low income – Economic loss calculated by primary judge at a rate higher than income for 8 months prior to accident and as shown in the income tax returns – Whether reasons should have been given for disregarding the record of pre-accident earnings.

Civil Liabilities Act 2002 s 13 LEGISLATION CITED: Evidence Act 1995 (NSW) s 135 Workplace Injury Management and Workers Compensation Act (s 318(1)(d))

CATEGORY: Principal judgment

Ainsworth v Burden [2005] NSWCA 174 Andrews v Nominal Defendant (1963) SR(NSW) 110 Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172 Clark [2001] NSWCCA 494; 123 A Crim R 506 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 CASES CITED: Driscoll v The Queen (1977) 137 CLR 517 Giorginis v Kastrati (1988) 49 SASR 371 House v The King (1936) 55 CLR 499 Ordukaya v Hicks [2000] NSWCA 180 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1; 77 ALJR 1449 Warren v Coombes (1979) 142 CLR 531