Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463

Supreme Court New South Wales

Medium Neutral Citation: Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463 Hearing dates: 9 September 2013 Decision date: 04 October 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) On or before 18 October 2013 the parties file and serve competing calculations on interest and submissions on costs, such submissions not to exceed seven pages. (2) The proceedings be listed for mention on 24 October 2013 at 9.30am before Beech-Jones J. Catchwords: CONSTITUTIONAL LAW - inconsistency between Commonwealth and State laws - State law restricting the recovery of damages for personal injury - State law limiting liability for negligence - Commonwealth law implying warranty into contract that services will be rendered with due care and skill - the Constitution, s 109 - Civil Liability Act 2002, Parts 1a & 2 - Trade Practices Act 1974 (Cth), s 74(1).

CONSTITUTIONAL LAW - inconsistency between Commonwealth and State laws - whether State law purports to operate on contractual term rendered void by Commonwealth law - the Constitution, s 109 - Civil Liability Act 2002, s 5n - Trade Practices Act 1974 (Cth), s 68(1).

DAMAGES - personal injury - whether Civil Liability Act applies to cause of action for breach of term implied by s 74(1) of the Trade Practices Act arising before 13 July 2004 - general damages - economic loss - domestic assistance - out of pocket expenses. Legislation Cited: - Carriage of Goods by Land (Carriers' Liabilities) Act 1967 (Qld) - Civil Liability Act 2002 - Trade Practices Act 1974 (Cth) Cases Cited: - Arturi v Zupps Motors Pty Ltd [1980] FCA 164; 49 FLR 283 - Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 241 FLR 125 - Momcilovic v R [2011] HCA 34; 245 CLR 1 - Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 - Victoria v The Commonwealth ("The Kakariki Case") [1937] HCA 82; 58 CLR 618 - Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 Category: Principal judgment Parties: Ghita Nair-Smith (Plaintiff) Perisher Blue Pty Ltd (Defendant) Representation: Counsel: G. Smith (Plaintiff) J.E. Sexton SC, R. Montgomery (Defendant) Solicitors: Lough & Wells (Plaintiff) DibbsBarker (Defendant) File Number(s): 2006/294818