Sangha v Baxter [2009] NSWCA 78

Appeal Outcome: Special leave dismissed with costs by the High Court, 3 November 2009 s99/2009

New South Wales Court of Appeal

CITATION: Sangha v Baxter [2009] NSWCA 78

HEARING DATE(S): 2 March 2009

JUDGMENT DATE: 9 April 2009

JUDGMENT OF: Tobias JA at 1; Basten JA at 131; Handley AJA at 161

(a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008; (b) Dismiss the respondent's summons seeking leave to cross-appeal; (c) Appeal allowed; DECISION: (d) The judgment of Judge McLoughlin of 29 May 2008 be set aside; (e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited; (f) The respondent to pay the appellant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if other otherwise qualified; (g) No order for costs with respect to the respondent's summons seeking leave to cross-appeal; (h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.

CATCHWORDS: APPEAL – appeal – general principles – interference with Judge's findings of fact – functions of appellate court – findings on issue of negligence – where findings based on credibility of witnesses – where findings clearly wrong – particular cases – whether acts causing injury were carried out in self defence – whether contributory negligence established – whether injury occurred following commission of a serious offence by injured party – power to transfer proceedings in the District Court on a claim for damages to the Common Law Division of the Supreme Court – whether the case involves complex legal issues or issues of general public importance