Court of Appeal
New South Wales
Case Title: Davis v Veigel; Davis v Broughton; Bell v Veigel; Bell v Broughton Medium Neutral Citation: [2011] NSWCA 170 Hearing Date(s): 2 and 3 June 2011 Decision Date: 29 June 2011 Jurisdiction: Before: Hodgson JA at [1]
Macfarlan JA at [2]
Young JA at [109]Decision: (1) Appeal of Mr Davis in the proceedings brought by Mr Veigel dismissed with costs;
(2) Leave to appeal granted to Mr Davis in the proceedings brought by Mrs Broughton;
(3) Appeal of Mr Davis in the proceedings brought by Mrs Broughton dismissed with costs;
(4) Leave granted to Messrs E Bell and Dee to appeal in relation to costs orders made on 18 September 2009 in the proceedings brought by Mr Veigel and Mrs Broughton;
(5) Appeal of Messrs E Bell and Dee for which leave was granted in Order 4 above 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 - fact finding - car accident caused by truck towing a caravan - differing evidence as to the identity of the offending vehicle and its driver - primary judge's findings credit-based - whether alleged errors in primary judge's reasoning sufficient to vitiate decision
PROCEDURE - pleadings - UCPR r 14.14(2)(a) - surprise rule - car accident caused by truck towing a caravan - witness for two defendants gave evidence indicating that non-party likely cause of accident - hearing adjourned to enable plaintiffs to join non-party as defendant - whether rules of pleading required defendants to plead involvement of non-party at least in the alternative - whether defendants entitled to apply ambush theory of litigation - whether primary judge construed UCPR r 14.14(2)(a) in such a way as to put it in conflict with UCPR r 14.7
Legislation Cited: Civil Procedure Act 2005
District Court Act 1973
District Court Rules 1973
Motor Accidents Compensation Act 1999
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2002) 54 NSWLR 135
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Shimokawa v Lewis [2009] NSWCA 266
White v Overland [2001] FCA 1333Texts Cited: Category: Principal judgment
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- AGLC
- Davis v Veigel [2011] NSWCA 170
- Case
- [2011] NSWCA 170
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge's findings of fact were demonstrably wrong, and whether the defendants had improperly relied on an "ambush theory" of litigation. Specifically, the court considered the application of UCPR r 14.14(2)(a) concerning surprise evidence, in light of the defendants' witness giving evidence that implicated a non-party as the likely cause of the accident. The court also examined whether the primary judge's construction of this rule conflicted with UCPR r 14.7, and whether the defendants were obliged to plead the involvement of the non-party in the alternative.
The court found that the primary judge's findings were credit-based and that there was no sufficient error in the reasoning to warrant overturning them. The court also determined that the defendants were entitled to rely on the evidence as it emerged, and that the rules of pleading did not compel them to plead the involvement of the non-party in the alternative. Consequently, the appeal of Mr Davis in the proceedings brought by Mr Veigel was dismissed. Leave to appeal was granted to Mr Davis in the proceedings brought by Mrs Broughton, but this appeal was also dismissed. Leave to appeal was granted to Messrs E Bell and Dee concerning costs orders, but their appeal was also dismissed.
Orders
Orders of the court
(1) Appeal of Mr Davis in the proceedings brought by Mr Veigel dismissed with costs;
(2) Leave to appeal granted to Mr Davis in the proceedings brought by Mrs Broughton;
(3) Appeal of Mr Davis in the proceedings brought by Mrs Broughton dismissed with costs;
(4) Leave granted to Messrs E Bell and Dee to appeal in relation to costs orders made on 18 September 2009 in the proceedings brought by Mr Veigel and Mrs Broughton;
(5) Appeal of Messrs E Bell and Dee for which leave was granted in Order 4 above 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
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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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