Divall v Mifsud

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.