Voss v Ipkendanz [2009] NSWSC 562

New South Wales Supreme Court

CITATION : Voss v Ipkendanz [2009] NSWSC 562

HEARING DATE(S) : 10 June 2009

JUDGMENT DATE : 19 June 2009

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

DECISION : (i) leave to appeal granted; (ii) the order of the Local Court of 3 October 2008, that there be a further hearing for the assessment of damages, is set aside; (iii) the matter is remitted to the Local Court for determination in accordance with these reasons; (iv) the Local Court is to provide the parties with an opportunity to be heard as to the future progress of the matter, and in particular the manner in which damages ought to be assessed.

CATCHWORDS : PROCEDURE – inferior courts – New South Wales – claims in nuisance and negligence – hearing on all issues – liability and damages – evidentiary material rejected – defendant liable to plaintiff in nuisance and negligence – decision by magistrate to permit further hearing on damages – appeal by leave – denial of procedural fairness – whether discretion under UCPR r 28.2 available to magistrate - APPEAL – leave to appeal granted – order set aside – direction to further conduct

Civil Procedure Act 2005 LEGISLATION CITED : Local Courts Act 1982 Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor [1981] HCA 39; (1981) 148 CLR 170 Dalecoast Pty Ltd v Guardian International Pty Ltd [2001] WASC 199 CASES CITED : Dalecoast Pty Ltd v Guardian International Pty Ltd [2003] WASCA 142 Gabor Martin Nagy v Masters Dairy Ltd [1996] FCA 1096 Gabor Martin Nagy v Masters Dairy Ltd [1997] FCA 1410 Masters Dairy Ltd v Gabor Martin Nagy & Anor [1998] FCA 907