Celestino v Celestino

Case [1990] FCA 449

Re: ROCCO CELESTINO
And: ANTONIO CELESTINO
No. ACT G7 of 1990
FED No. 449
Practice and Procedure - Assessment of Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA


AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Miles(1) and Von Doussa(1) JJ.
CATCHWORDS

Practice and Procedure - admission of liability by letter - application made during assessment of damages to withdraw admission - principles to be applied.

Assessment of Damages - bodily injuries - whether findings of fact in accordance with the evidence - whether damages for lost earning capacity should be awarded in respect of period of total incapacity where employer continued to pay ordinary remuneration - assessment of damages for lost earning capacity suffered by a principal in a company operating a family business - whether sufficient allowance made for contingencies in the assessment of future loss.

HEARING

CANBERRA

#DATE 16:8:1990

Counsel for the appellant : Mr. J.C. Hartigan

Solicitor for the appellant : Abbott, Tout, Russell, Kennedy

Counsel for the respondent : Mr. A. Shand, QC with Mr. S.R.C. Wilcox

Solicitor for the respondent : Romano and Co.

ORDER

1. The appeal be allowed.

2. Judgment in favour of the respondent for $129,904.95 be set aside and in lieu thereof judgment be entered for the respondent for $104,224.95.

3. Appellant to pay one half of the respondent's costs of the appeal to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal against a judgment for $129,904.95 awarded to the respondent for damages for bodily injury suffered in a motor vehicle accident which occurred on 1 May 1980 near Lake George, New South Wales. The respondent was a passenger in a small truck which left the carriageway and overturned. The appellant, who was the driver, and a third occupant of the vehicle were brothers of the respondent.

  1. It is convenient to first deal with grounds 7 and 8 of the notice of appeal which concern the refusal of the learned trial judge to give leave to the appellant to withdraw an admission of liability. When the trial commenced on 14 December 1987, his Honour was informed that the appellant had admitted liability, and that the trial would proceed as an assessment of damages against the appellant. The trial proceeded in this way. On 15 December the trial was then adjourned, and resumed on 23 May 1988. As the result of certain answers about the happening of the accident which the respondent gave during his cross-examination on 26 May 1988, counsel for the appellant applied to withdraw the admission of liability. This occurred on the sixth day of the trial. The application was refused. Later in the trial, the respondent called the appellant, to give evidence directed to the respondent's damages. During the appellant's cross- examination his counsel sought to renew the application for leave to withdraw the admission of liability, and his Honour confirmed his earlier refusal. The appellant now contends that both rulings…

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AGLC
Celestino, R. v. Celestino, A [1990] FCA 449
Case
[1990] FCA 449
Decision Date

CaseChat Overview and Summary

Celestino v Celestino involved a dispute between the parties over an admission of liability made by the appellant during the assessment of damages. The respondent sought to set aside the admission, which led to an appeal against the decision to allow the withdrawal of the admission. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the appellant could withdraw the admission of liability after it had been made, particularly when the application to withdraw was made during the assessment of damages. The court had to consider the principles governing the withdrawal of admissions in civil proceedings and the appropriate circumstances under which such withdrawals are permitted.

The court examined the principles established in relevant case law, particularly focusing on the timing and context of the withdrawal application. It found that the principles guiding the withdrawal of admissions in civil proceedings emphasise the importance of finality in litigation and the need to balance this with fairness to the parties. The court noted that while admissions are generally binding and should not be lightly withdrawn, there are exceptional circumstances where a withdrawal may be appropriate, such as when the admission was made in error or under a significant misunderstanding. However, the court emphasised that the application to withdraw must be made promptly and the reasons for the withdrawal must be compelling.

In this case, the court concluded that the application to withdraw the admission was not made in a timely manner and the reasons provided were insufficient to justify the withdrawal. The court found that the principles of finality and fairness weighed against allowing the withdrawal. Consequently, the appeal was allowed, the judgment was set aside, and a new judgment was entered in favour of the respondent for a reduced amount. The appellant was also ordered to pay half of the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. Judgment in favour of the respondent for $129,904.95 be set aside and in lieu thereof judgment be entered for the respondent for $104,224.95.

3. Appellant to pay one half of the respondent's costs of the appeal to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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