Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Cooper v Hobbs [2013] NSWCA 70 Hearing dates: 25 September 2012 Decision date: 09 April 2013 Before: McColl JA at [1], Meagher JA at [89], Bergin CJ in Eq at [98] Decision: 1. Appeal allowed.
2. Set aside the orders made by Letherbarrow SC DCJ on 28 July 2011 and entered on 2 August 2011.
3. Remit the matter to the District Court of New South Wales for a new trial.
4. Respondents to pay the costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
5. Costs of the first trial to be in the discretion of the judge who hears the second trial.
[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 - error in process of fact finding - failure to examine all material relevant to central issue - new trial required
CONTRACT - whether transaction loan to appellant or investment in third party company - whether respondents' case contrary to compelling inference
CONTRACT - post-contractual conduct - letter from respondents' solicitor to third party - whether letter contained admissions adverse to respondents' interests
EVIDENCE - whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness - client legal privilege - where respondents gave evidence at trial about solicitor's advice - whether respondents waived privilege by acting inconsistently with maintenance of privilegeLegislation Cited: Evidence Act 1995
Suitors' Funds Act 1951
Uniform Civil Procedure Rules 2005Cases Cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Armory v Delamirie (1722) 1 Stra 505; 93 ER 664
Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Benecke v National Australia Bank (1993) 35 NSWLR 110
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Manly Council v Byrne [2004] NSWCA 123
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Osland v Secretary, Dept of Justice [2008] HCA 37; (2008) 234 CLR…
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- AGLC
- Cooper v Hobbs [2013] NSWCA 70
- Case
- [2013] NSWCA 70
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the primary judge erred in the process of fact-finding by failing to examine all material relevant to the central issue, and whether the respondents' case was contrary to a compelling inference. The court also considered whether a letter from the respondents' solicitor to a third party contained admissions adverse to the respondents' interests, and whether the primary judge was entitled to draw a *Jones v Dunkel* inference from the respondents' failure to call their solicitor as a witness, particularly in light of issues surrounding client legal privilege and whether privilege had been waived by the respondents giving evidence about the solicitor's advice.
The appellate court found that the primary judge had failed to examine all material relevant to the central issue, constituting an error in the process of fact-finding. This failure necessitated a new trial. The court allowed the appeal, set aside the orders of the District Court made on 28 July 2011, and remitted the matter to the District Court for a new trial. The respondents were ordered to pay the costs of the appeal and were to have a certificate under the *Suitors' Fund Act 1951* if qualified. The costs of the first trial were to be at the discretion of the judge hearing the second trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by Letherbarrow SC DCJ on 28 July 2011 and entered on 2 August 2011.
3. Remit the matter to the District Court of New South Wales for a new trial.
4. Respondents to pay the costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
5. Costs of the first trial to be in the discretion of the judge who hears the second trial.
[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
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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
Established by: BERGIN CJ
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