Amaca Pty Ltd v Hicks [2011] NSWCA 295

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Amaca Pty Ltd v Hicks [2011] NSWCA 295 Hearing dates: 8 September 2011 Decision date: 16 September 2011 Before: Basten JA at 1; Whealy JA at 50; Handley AJA at 51 Decision: Appeal 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 - costs - general rule that costs follow the event - costs incurred due to adjourned hearing - both parties provided with opportunity to provide further written submissions in light of result - party's failure to avail itself of the opportunity to do so - submission for exception to the general rule not based on point of law - challenge to costs order rejected

APPEAL - civil - evidence - admission of evidence based on discretionary judgment of the trial judge - reasons provided for admission of evidence - reasons not recorded because court sound-recording equipment turned off - no further evidence provided by the appellant to supplement transcript - no error of law established

TORTS - negligence - assessment of damages - Griffiths v Kerkemeyer damages - calculation based on average weekly earnings - whether calculations based on judge's "experience" - maximum amount of damages awarded for gratuitous care - Civil Liability Act 2002 (NSW) s 15(5) Legislation Cited: Civil Liability Act 2002 (NSW), ss 15, 15A Civil Procedure Act 2005 (NSW), s 98 Dust Diseases Tribunal Act 1989 (NSW), ss 4, 25, 25A, 25B, 32 Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 42.1; Sch 1 Cases Cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Bale v Mills [2011] NSWCA 226 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 House v The King [1936] HCA 40; 55 CLR 499 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Category: Principal judgment Parties: Amaca Pty Ltd - Appellant Grahame John Hicks - Respondent Representation: Counsel: