Singler v Ferguson [2010] NSWCA 325

New South Wales Court of Appeal

CITATION: Singler v Ferguson [2010] NSWCA 325

HEARING DATE(S): 15 and 16 September 2010

JUDGMENT DATE: 29 November 2010

JUDGMENT OF: Beazley JA at 1; Young JA at 57; Handley AJA at 133

1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent made in the Court below; 3. Order that the matter be remitted to the District Court for rehearing; DECISION: 4. Save for the costs of 5 November and 1 December 2008, order that the costs of the first hearing at first instance abide the outcome of the new trial. The appellant is to pay the respondent's costs of 5 November and 1 December 2008; 5. Order that the respondent pay the appellant's costs of the appeal; 6. Order, pursuant to the Civil Procedure Act 2005, s 26, that prior to the matter being remitted, the proceedings are referred to mediation. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: EVIDENCE – medical evidence – medical evidence obtained during course of trial – whether party under a duty to disclose relevant medical evidence obtained during course of trial - EVIDENCE – credit – adverse credit finding contended for by counsel – proposition not put to witness – whether trial judge erred in relying on proposition not put to witness to make adverse credit finding - PROCEDURAL FAIRNESS – right to a fair trial – right of a party to be appraised of the case which he or she must meet – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 - PROCEDURAL FAIRNESS – right to a fair trial – material to which trial judge relied not put to appellant in cross-examination – whether adverse credit findings contended for by counsel should have been put to appellant in cross-examination – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141