Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Hearing dates: 6 - 7 February 2014 Decision date: 03 April 2014 Before: Emmett JA at [1]; Gleeson JA at [7]; Tobias AJA at [252] Decision: Appeal - 2013/13214 (1) Appeal allowed in part (in relation to the indemnity costs order on and from 18 August 2011 based on the Calderbank offer). (2) Appeal otherwise dismissed. (3) Set aside order 2 made by the primary judge on 14 May 2013. (4) Amend order 3 made by the primary judge on 14 May 2013, by deleting the words "Without prejudice to the earlier order by reason of the Calderbank offer, and in the alternative, but in the circumstances with no effect so long as the earlier orders remain in effect". (5) The respondent's notice of motion filed 24 October 2012 be dismissed with costs. (6) Appellant to otherwise pay the respondent's costs of the appeal. Summons for leave to appeal - 2012/334491 (1) The applicant to pay the respondent's costs of the summons. [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: COSTS - Indemnity costs order based on a Calderbank offer DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Future Economic Loss and Past Gratuitous Care - Sections 13 and 15 of the Civil Liability Act EVIDENCE - General - Whether inference open from failure to call witness - Whether Court improperly applied the rule in Jones v Dunkel JUDGES - Grounds of review - Procedural fairness - Bias - Actual and/or apprehended bias - Whether judge indicated prejudgment TORTS - Negligence - Essentials of action for negligence - Duty of Care - Whether there was a breach of duty - Section 5B of the Civil Liability Act TORTS - Negligence - Essentials of action for negligence - Damage - Causation - Whether the (assumed) breach of duty was a necessary condition of the occurrence of harm - Section 5D of the Civil Liability Act PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Objection to Competency of appeal under r51.41 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 127(2)(c) of the District Court Act PROCEDURE - Adducing expert evidence - r31.28 Uniform Civil Procedure Act - Late filing and service of expert reports Legislation Cited: Civil Liability Act 2002, s5B, 5D, 13, 15 District Court Act 1973 s127(2)(c) Uniform Civil Procedure Rules 2005 r31.28, 51.41 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserve Trust) v Thompson [2012] NSWCA 340 Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 Coregas Pty Ltd v Penfold Australia Pty Ltd [2012] NSWCA 350 Galea v Galea (1990) 19 NSWLR 263 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Johnson v Johnson [2008] HCA 48; 201 CLR 488 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Payne v Parker [1976] 1 NSWLR 191 Reid v Commercial Club (Albury) Ltd (District Court 19 December 2012) Reid v Commercial Club (Albury) Ltd (District Court 14 May 2013) Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 Rouvinetis v Knoll [2013] NSWCA 24 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 Sneddon v New South Wales [2012] NSWCA 351 South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Sutherland Shire Council v Henshaw [2004] NSWCA 386 SZURI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Woolworths Limited v Strong & Anor [2010] NSWCA 282 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Category: Principal judgment Parties: Kimberley Reid (Appellant/Applicant) Commercial Club (Albury) Ltd (Respondent) Representation: Counsel: F Austin (Appellant/Applicant) M T McCulloch SC with T A Berberian (Respondent) Solicitors: Gerard Malouf & Partners (Appellant/Applicant) HWL Ebsworth (Respondent) File Number(s): 2013/13214, 2012/334491 Decision under appeal Jurisdiction: 9101 Citation: Kimberley Reid v Commercial Club (Albury) Limited (District Court, 19 December 2012, unreported)