Australian Native Landscapes Pty Ltd v Minogue [2010] NSWCA 279
HEARING DATE(S):
11 October 2010
JUDGMENT DATE:
29 October 2010
JUDGMENT OF:
Allsop P at 1; Beazley JA at 2; McColl JA at 3
DECISION:
Appeal dismissed with costs.
CATCHWORDS:
TORTS – damages – contribution between tortfeasors – s 5(1)(c), Law Reform (Miscellaneous Provisions) Act 1946 – where plaintiff’s damages already reduced by determination of co-tortfeasor’s notional liability under s151Z(2), Workers Compensation Act 1987 - - APPEAL – general principles – point not taken at hearing – not permitted to be raised on appeal
Australian Native Landscapes Pty Ltd - Appellant Bernie Minogue - first Respondent Australian Native Landscapes (Admin) Pty Ltd - second Respondent
FILE NUMBER(S):
CA 2009/325388
COUNSEL:
KW Andrews - for the Appellant JE Sexton SC with DP Kelly - for the Respondents
SOLICITORS:
David Veasey - for the Appellant Moray & Agnew - for the Respondents
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 2006/84
LOWER COURTJUDICIAL OFFICER:
Charteris DCJ
LOWER COURT DATE OF DECISION:
18 December 2009
2009/325388
ALLSOP P BEAZLEY JA McCOLL JA
Friday 29 October 2010
Australian Native Landscapes Pty Ltd v Minogue
Judgment
1 ALLSOP P: For the reasons given by McColl JA, whose judgment I have had the advantage of reading, the appellant should not be allowed to approach this appeal in the different manner that is attempted to be done. For this reason, as explicated by McColl JA, the appeal should be dismissed with costs. I would only wish to add that the lack of raising the issue (with any adequate clarity) as was sought to be agitated on appeal can be seen by its absence from the otherwise comprehensive reasons of the learned primary judge.
2 BEAZLEY JA: I agree with McColl JA.
3 McCOLL JA: Matthew Hayes, the plaintiff, was injured on 9 January 2004 when he was struck by a large set of metal grabs…
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.
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AGLC
Bresmac Pty Ltd v Starr [2010] NSWCA 279
Case
[2010] NSWCA 279
Decision Date
CaseChat Overview and Summary
Bresmac Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning contribution between tortfeasors. The dispute arose from a claim by a plaintiff who had suffered injuries, for which Bresmac and another party were found to be concurrently liable. The plaintiff's damages had already been reduced by the notional liability of a co-tortfeasor under section 151Z(2) of the *Workers Compensation Act 1987* (NSW). Bresmac sought to argue on appeal that this reduction should not have been applied in the assessment of contribution between tortfeasors.
The primary legal issue before the Court of Appeal was whether the reduction in the plaintiff's damages, made pursuant to section 151Z(2) of the *Workers Compensation Act 1987* (NSW), should be taken into account when determining the extent of contribution recoverable between concurrent tortfeasors under section 5(1)(c) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW). A secondary issue, which arose during the appeal, concerned whether a point not taken at the original hearing could be raised on appeal.
The Court of Appeal dismissed the appeal, holding that the point Bresmac sought to raise on appeal had not been taken in the court below and therefore could not be raised on appeal. The Court affirmed the general principle that points not taken at the hearing are not permitted to be raised on appeal, particularly where doing so would involve a re-litigation of the factual matrix or introduce new arguments that were not considered by the trial judge. Consequently, the appeal was dismissed with costs.