Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Hearing dates: 31 August 2017 and 1 September 2017 Decision date: 22 September 2017 Before: Basten JA at [1]; Gleeson JA at [1]; Adamson J at [9] Decision: (1) Refuse leave to the respondent to file the notice of contention dated 1 September 2017.

(2) Allow the appeal.

(3) Set aside the judgments of Gibson DCJ dated 25 November 2016 and 16 December 2016 and the costs order made on 22 December 2016.

(4) In lieu thereof,

(a) order that there be judgment for the defendant, and (b) order that the plaintiff pay the defendant's costs of the trial.

(5) Order that the respondent pay the appellant's costs of the appeal. Catchwords: CIVIL PROCEDURE – cross-examination – obligations of counsel to conduct cross-examination in fair and civil manner – obligations of trial judge to ensure fair process – permissibility of adverse witness credibility findings when witness subjected to confronting and insulting cross-examination

CIVIL PROCEDURE – notice of contention – respondent sought leave to file notice of contention after commencement of hearing – whether leave should be granted – whether grounds of contention hopeless

CONSUMER LAW – guarantee that services will be rendered with due care and skill under Australian Consumer Law s 60 – whether plaintiff diving instructor suffered decompression illness when assisting incapacitated client during dive – whether defendant ought to have known that plaintiff required oxygen – whether insufficient oxygen on board boat – whether plaintiff provided with insufficient assistance in lifting client onto boat – whether defendant advised client to dive with knowledge of client's pre-existing head injury