Amaca Pty Ltd v Hicks - [2011] NSWCA 295

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Amaca Pty Ltd v Hicks [2011] NSWCA 295
Hearing dates: 8 September 2011
Decision date: 16 September 2011
Before: Basten JA at 1;
Whealy JA at 50;
Handley AJA at 51
Decision:
Appeal dismissed with costs.
[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:
APPEAL - civil - costs - general rule that costs follow the event - costs incurred due to adjourned hearing - both parties provided with opportunity to provide further written submissions in light of result - party's failure to avail itself of the opportunity to do so - submission for exception to the general rule not based on point of law - challenge to costs order rejected

APPEAL - civil - evidence - admission of evidence based on discretionary judgment of the trial judge - reasons provided for admission of evidence - reasons not recorded because court sound-recording equipment turned off - no further evidence provided by the appellant to supplement transcript - no error of law established
TORTS - negligence - assessment of damages - Griffiths v Kerkemeyer damages - calculation based on average weekly earnings - whether calculations based on judge's "experience" - maximum amount of damages awarded for gratuitous care - Civil Liability Act 2002 (NSW) s 15(5)
Legislation Cited: Civil Liability Act 2002 (NSW), ss 15, 15A
Civil Procedure Act 2005 (NSW), s 98
Dust Diseases Tribunal Act 1989 (NSW), ss 4, 25, 25A, 25B, 32
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 42.1; Sch 1
Cases Cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Bale v Mills [2011] NSWCA 226
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
House v The King [1936] HCA 40; 55 CLR 499
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category: Principal judgment
Parties: Amaca Pty Ltd - Appellant
Grahame John Hicks - Respondent
Representation:
Counsel:

Mr Williams with Mr J L Sharpe - Appellant
Mr P Semmler QC/Mr S Tzouganatos - Respondent
Solicitors:
Ellison Tillyard Callanan - Appellant
Turner Freeman - Respondent

File Number(s): CA 2010/424786
Decision under appeal

Before:

Kearns J

File Number(s):

DDT 55 of 2010

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent suffers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaca Pty Ltd v Hicks

Details

AGLC: Amaca Pty Ltd v Hicks [2011] NSWCA 295
Case: [2011] NSWCA 295
Decision Date: 16 September 2011

CaseChat Overview and Summary

Amaca Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the trial judge concerning damages awarded to Mr Hicks. The dispute arose from a claim for damages for negligence, specifically relating to the assessment of damages for gratuitous care.

The Court of Appeal was required to determine several legal issues. These included whether the trial judge erred in admitting certain evidence, given that the reasons for admission were not recorded due to equipment malfunction and no supplementary evidence was provided by the appellant. The Court also considered the assessment of damages for gratuitous care, specifically whether the calculations were based on the judge's "experience" and whether the maximum amount awarded was consistent with section 15(5) of the *Civil Liability Act 2002* (NSW). Finally, the Court addressed the issue of costs, considering whether there were grounds to depart from the general rule that costs follow the event, particularly in light of a party's failure to utilise an opportunity to provide further written submissions.

The Court of Appeal rejected the grounds of appeal. Regarding the admission of evidence, the Court found no error of law, as the trial judge's discretionary judgment was exercised with reasons, even if not formally recorded. On the assessment of damages, the Court found the calculations to be permissible and consistent with the relevant legislative provisions. The challenge to the costs order was also unsuccessful, as the submission for an exception to the general rule was not based on a point of law and the appellant had failed to avail itself of the opportunity to provide further submissions.

The appeal was dismissed, and Amaca Pty Ltd was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Amaca Pty Ltd v Hicks [2011] NSWCA 295
Hearing dates:	8 September 2011
Decision date:	16 September 2011
Before:	Basten JA at 1; Whealy JA at 50; Handley AJA at 51
Decision:	Appeal dismissed with costs. [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:	APPEAL - civil - costs - general rule that costs follow the event - costs incurred due to adjourned hearing - both parties provided with opportunity to provide further written submissions in light of result - party's failure to avail itself of the opportunity to do so - submission for exception to the general rule not based on point of law - challenge to costs order rejected APPEAL - civil - evidence - admission of evidence based on discretionary judgment of the trial judge - reasons provided for admission of evidence - reasons not recorded because court sound-recording equipment turned off - no further evidence provided by the appellant to supplement transcript - no error of law established TORTS - negligence - assessment of damages - Griffiths v Kerkemeyer damages - calculation based on average weekly earnings - whether calculations based on judge's "experience" - maximum amount of damages awarded for gratuitous care - Civil Liability Act 2002 (NSW) s 15(5)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 15, 15A Civil Procedure Act 2005 (NSW), s 98 Dust Diseases Tribunal Act 1989 (NSW), ss 4, 25, 25A, 25B, 32 Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 42.1; Sch 1
Cases Cited:	Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Bale v Mills [2011] NSWCA 226 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 House v The King [1936] HCA 40; 55 CLR 499 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category:	Principal judgment
Parties:	Amaca Pty Ltd - Appellant Grahame John Hicks - Respondent
Representation:	Counsel: Mr Williams with Mr J L Sharpe - Appellant Mr P Semmler QC/Mr S Tzouganatos - Respondent Solicitors: Ellison Tillyard Callanan - Appellant Turner Freeman - Respondent
File Number(s):	CA 2010/424786
Decision under appeal	Before: Kearns J File Number(s): DDT 55 of 2010