Larsen v Grace Worldwide (Australia) Pty Ltd [2016] NSWCA 251

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Larsen v Grace Worldwide (Australia) Pty Ltd [2016] NSWCA 251 Hearing dates: 18 August 2016 Decision date: 07 September 2016 Before: McColl JA at [1]; Basten JA at [2]; Macfarlan JA at [3]; Decision: (1) Dismiss the appellants' notice of motion filed on 12 July 2016 seeking leave to adduce further evidence on appeal. (2) Direct that the appellants' application for leave to appeal be treated as an appeal as of right. (3) Dismiss the appeal. (4) Order the appellants to pay the respondent's costs of the appeal. Catchwords: TORTS – negligence – bailment – respondent carrier transported goods from New South Wales to Germany – whether damage to the goods occurred whilst in possession of respondent – whether substances discovered on the goods were toxic and causative of injury to appellants

PROCEDURAL FAIRNESS – respondent permitted to rely on report of different expert after initial expert became unavailable – whether procedural unfairness – no complaint made to primary judge – change did not prejudice appellants

EVIDENCE – appeal – new evidence sought to be tendered – failure to establish "special grounds" pursuant to Supreme Court Act 1970 (NSW), s 75A(8) Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(a), 21 Supreme Court Act 1970 (NSW), s 75A(8) Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220; [1971] HCA 26 Category: Principal judgment Parties: Terry Larsen (First Appellant) Uta Larsen (Second Appellant) Grace Worldwide (Australia) Pty Ltd t/as Grace Removals Group (Respondent) Representation: Counsel: A Oag (Amicus Curiae) (Appellants) R Cavanagh SC / R Potter (Respondent)