Davis v Veigel; Davis v Broughton; Bell v Veigel; Bell v Broughton [2011] NSWCA 170

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Davis v Veigel; Davis v Broughton; Bell v Veigel; Bell v Broughton [2011] NSWCA 170 Hearing dates: 2 and 3 June 2011 Decision date: 29 June 2011 Before: Hodgson JA at [1] Macfarlan JA at [2] Young JA at [109] Decision: (1) Appeal of Mr Davis in the proceedings brought by Mr Veigel dismissed with costs; (2) Leave to appeal granted to Mr Davis in the proceedings brought by Mrs Broughton; (3) Appeal of Mr Davis in the proceedings brought by Mrs Broughton dismissed with costs; (4) Leave granted to Messrs E Bell and Dee to appeal in relation to costs orders made on 18 September 2009 in the proceedings brought by Mr Veigel and Mrs Broughton; (5) Appeal of Messrs E Bell and Dee for which leave was granted in Order 4 above dismissed with costs. [Note: 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: APPEAL - civil - fact finding - car accident caused by truck towing a caravan - differing evidence as to the identity of the offending vehicle and its driver - primary judge's findings credit-based - whether alleged errors in primary judge's reasoning sufficient to vitiate decision

PROCEDURE - pleadings - UCPR r 14.14(2)(a) - surprise rule - car accident caused by truck towing a caravan - witness for two defendants gave evidence indicating that non-party likely cause of accident - hearing adjourned to enable plaintiffs to join non-party as defendant - whether rules of pleading required defendants to plead involvement of non-party at least in the alternative - whether defendants entitled to apply ambush theory of litigation - whether primary judge construed UCPR r 14.14(2)(a) in such a way as to put it in conflict with UCPR r 14.7 Legislation Cited: Civil Procedure Act 2005 District Court Act 1973 District Court Rules 1973 Motor Accidents Compensation Act 1999 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2002) 54 NSWLR 135 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Shimokawa v Lewis [2009] NSWCA 266 White v Overland [2001] FCA 1333 Category: Principal judgment Parties: Dean Leslie Davis John Veigel by his tutor Paula Tallen Elwin L Bell Jamie Dee Christine Broughton The Nominal Defendant Representation: Counsel: Dean Leslie Davis - R W Seton SC/P L Carr Elwin L Bell and Jamie Dee - J E Maconachie QC/C L Thompson Christine Broughton - J M Morris/A C Hemmings The Nominal Defendant - R R Stitt QC/D M Wilson Solicitors: Dean Leslie Davis - Curwoods Lawyers John Veigel by his tutor Paula Tallen - Stacks/Goudkamp Lawyers Elwin L Bell and Jamie Dee - Carroll & O'Dea Lawyers Christine Broughton - Keddies Litigation Lawyers The Nominal Defendant - Sparke Helmore Lawyers File Number(s): CA 2009/298530; CA 2009/2098529; CA 2009/298551; CA 2009/298552 Decision under appeal Before: Walmsley DCJ File Number(s): DC 8279/2002; DC 1082/2004