State of New South Wales v Fuller-Lyons [2014] NSWCA 424

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Fuller-Lyons [2014] NSWCA 424 Hearing dates: 13 and 14 November 2014 Decision date: 09 December 2014 Before: McColl JA at [1]; Macfarlan JA at [9]; Sackville AJA at [72] Decision: (1) Refuse leave to the respondent to file a notice of contention in the form identified in the course of argument. (2) Allow the appeal. (3) Set aside orders (1) and (2) made by the Common Law Division on 8 April 2014 and entered on 11 April 2014. (4) Judgment for the appellant on the respondent's claim against it. (5) Order the respondent to pay the appellant's costs of the proceedings at first instance and on appeal. (6) Grant to the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if qualified. [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: NEGLIGENCE - respondent injured after falling from moving train operated by appellant - whether sufficient evidence to enable affirmative conclusion to be drawn that respondent's body was protruding significantly from train doors when train left station - whether conflicting inferences of equal degree of probability - whether primary judge's acceptance of evidence of respondent's brothers was glaringly improbable or otherwise flawed - whether State was denied procedural fairness by supposedly late formulation of case against it - appeal allowed Legislation Cited: Suitors' Fund Act 1951 (NSW) Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 Curtis v Harden Shire Council [2014] NSWCA 314 Fox v Percy [2003] HCA 22; 214 CLR 118 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 McLennan v Nominal Defendant [2014] NSWCA 332 Minogue v Rudd [2013] NSWCA 345 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Category: Principal judgment Parties: State of New South Wales (Appellant) Corey Travis Fuller-Lyons by his Tutor NSW Trustee and Guardian (Respondent) Representation: Counsel: R J Burbidge QC/A C Casselden (Appellant) C T Barry QC/J Davidson (Respondent) Solicitors: Hicksons Lawyers (Appellant) AC Lawyers (Respondent) File Number(s): CA 2014/134679 Decision under appeal Jurisdiction: 9111 Citation: Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 Date of Decision: 2013-11-15 00:00:00 Before: Beech-Jones J File Number(s): SC 2008/316134