Divall v Mifsud

Case [2005] NSWCA 447
CITATION:

Divall v Mifsud [2005] NSWCA 447
HEARING DATE(S):

25/07/05
 
JUDGMENT DATE: 


14 December 2005

JUDGMENT OF:

Ipp JA at 1; McColl JA at 7; Campbell AJA at 11
DECISION:

1. Verdict and judgment of Judge Armitage set aside; 2. The matter to be remitted to the District Court for a new trial limited to the issue of liability including contributory negligence; 3. Damages be assessed at $162,100; 4. The costs of the first trial to be determined by the judge hearing the retrial; 5. The respondent to pay 80 percent of the appellant’s costs of the appeal and cross appeal and to have a Certificate under the Suitors’ Fund Act 1951 if otherwise entitled.
CATCHWORDS:

Appeal and New Trial - Error of law - Process of reasoning not exposed in reasons for decision - Justice not appearing to be done - Legal professional privilege - Evidence Act 1995 section 122 - Waiver by Counsel not taking objection in cross-examination.
LEGISLATION CITED:

Evidence Act 1995
Motor Accidents Act 1999
Suitors' Fund Act 1951
CASES CITED:

Malco Engineering Pty Ltd v Ferreira (Supreme Court March 1994 unreported)
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Mifsud v Campbell (1991) 21 NSWLR 725
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2000] NSWSC 430
Tesltra Corp v Australia Media Holdings [No 2] (1997) 41 NSWLR 346
Sovereign v Bevillesta [2000] NSWSC 521
Application of Cannar [2003] NSWSC 802
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Eden Productions v Southern Star Group (2002) NSWCS 116
March v Stramare (E & M H) Pty Ltd (1990 - 1991) 171 CLR 506
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Multicon Engineering Pty Ltd v Federal Airports Corp (CA 15 October 1997 unreported)
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
PARTIES:

John Divall - First Appellant
Mark Mason - Second Appellant
James Mifsud - First Respondent
James Mifsud - Cross Appellant
John Divall - First Cross Respondent
Mark Mason - Second Cross Respondent

FILE NUMBER(S):

CA 41062/04
COUNSEL:

R R Barrlett SC with D M Wilson - Appellants
L King SC with H J Halligan - Respondent
SOLICITORS:

Abbott Tout - Appellants
Johnson & Sendall, Goulburn - Respondent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 17/2002

LOWER COURT JUDICIAL OFFICER:

Armitage DCJ



                          CA 41062/04
                          DC 17/02

                          IPP JA
                          McCOLL JA
                          M W CAMPBELL AJA

                          Wednesday 14 December 2005
DIVALL & ANOR v MIFSUD
Judgment

1 IPP JA: Save in one respect I agree with the reasons of M W Campbell AJA. I agree with the orders proposed by his Honour.

2 The respect in which I differ from M W Campbell AJA is in regard to the admissibility of Mr Kent’s statement.

3 As M W Campbell AJA points out, Mr Kent gave the following evidence under cross-examination:

          “Q. Does the statement contain a…

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Details
AGLC
Divall v Mifsud [2005] NSWCA 447
Case
[2005] NSWCA 447
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Divall (appellant) and Mifsud (respondent) before the New South Wales Court of Appeal. The central issue revolved around whether the trial judge's reasons for decision adequately exposed the process of reasoning, leading to a perception that justice had not been done. A secondary issue involved the application of legal professional privilege under section 122 of the *Evidence Act 1995* (NSW) and whether it had been waived by counsel's failure to object during cross-examination.

The Court of Appeal was required to determine whether the trial judge's reasons for judgment were so deficient as to constitute an error of law, thereby preventing the appellate court from being satisfied that justice had been done. Furthermore, the court had to consider whether the privilege attaching to certain communications had been lost due to the conduct of counsel during the trial, specifically the absence of an objection to the production of privileged material.

The Court found that the trial judge's reasons were inadequate, failing to articulate the factual findings and the reasoning process that led to the ultimate conclusions on liability. This lack of transparency meant that the appellate court could not be satisfied that justice had been done. Regarding legal professional privilege, the Court held that the failure of counsel to object to the tender of privileged documents during cross-examination constituted a waiver of that privilege.

Consequently, the Court of Appeal set aside the verdict and judgment of the trial judge. The matter was remitted to the District Court for a new trial, limited to the issue of liability, including contributory negligence. Damages were assessed at $162,100, and the costs of the first trial were to be determined by the judge hearing the retrial. The respondent was ordered to pay 80 percent of the appellant’s costs of the appeal and cross-appeal, with a provision for a Certificate under the *Suitors’ Fund Act 1951* if otherwise entitled.

Orders

Orders of the court

1. Verdict and judgment of Judge Armitage set aside; 2. The matter to be remitted to the District Court for a new trial limited to the issue of liability including contributory negligence; 3. Damages be assessed at $162,100; 4. The costs of the first trial to be determined by the judge hearing the retrial; 5. The respondent to pay 80 percent of the appellant’s costs of the appeal and cross appeal and to have a Certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

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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