Mastronardi v State of New South Wales [2009] NSWCA 270

New South Wales Court of Appeal

CITATION: Mastronardi v State of New South Wales [2009] NSWCA 270 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 April 2009

JUDGMENT DATE: 2 September 2009

JUDGMENT OF: Giles JA at 1; McColl JA at 14; Handley AJA at 90

DECISION: 1. Extend the time to seek leave to appeal to 26 August 2008. 2. Grant leave to appeal. 3. Dispense with the requirement to file the Notice of Appeal. 4. Appeal dismissed with costs.

CATCHWORDS: APPEAL – trial judge's rejection of plaintiff's account of critical events based to large extent on adverse credibility findings – whether such findings tainted by factual errors – whether error in not accepting the plaintiff's evidence based on adverse credibility findings and lack of corroboration – whether substantial wrong or miscarriage – Uniform Civil Procedure Rules 2005 (NSW) Pt 51, r 53

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Principal judgment

Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; (2004) 4 DDCR 358 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gett v Tabet [2009] NSWCA 76 CASES CITED: King v Collins [2007] NSWCA 122 Mastronardi v State of New South Wales [2007] NSWCA 54 Mastronardi v State of New South Wales (District Court of New South Wales, Boulton ACDJ, 6 May 2008, unreported) Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240

PARTIES: Fabian Mastronardi - Appellant State of New South Wales - Respondent

FILE NUMBER(S): CA 40261/08

COUNSEL: B J Gross QC with K Ryan – Appellant M Cashion SC with S Finnane – Respondent