NEW SOUTH WALES COURT OF APPEAL
CITATION:
Duong v Tran [2010] NSWCA 280
FILE NUMBER(S):
2010/19264
HEARING DATE(S):
1 October 2010
JUDGMENT DATE:
2 November 2010
PARTIES:
Eric Duong (by his tutor Van So Dang) - Appellant
Thi Tram Anh Tran - Respondent
JUDGMENT OF:
Giles JA Sackville AJA Harrison J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 244/05
LOWER COURT JUDICIAL OFFICER:
Robison DCJ
LOWER COURT DATE OF DECISION:
21/10/09, 22/10/09, 23/10/09
COUNSEL:
S Norton SC & M Fraser - Appellant
K P Rewell SC & M A Cleary - Respondent
SOLICITORS:
Brydens, Liverpool - Appellant
Dibbs Barker - Respondent
CATCHWORDS:
APPEAL - procedural fairness - apprehended bias - in pleading ruling, indication of "surprise" at submission that counsel "surprised" by opponent's contention - whether apprehended bias shown - no apprehended bias. APPEAL - procedural fairness - observations of appellant - observation relied on in judgment - issue and observations raised in addresses - whether denial of procedural fairness - no denial of procedural fairness. DAMAGES - torts - negligence - personal injury - whether brain damage shown - whether error in evaluating conflicting evidence - no error shown - no question of principle. PROCEDURE - civil - adjournment - appellant injured when 16 months old - alleged brain damage - adjournment until age 11 sought in order to test brain function - adjournment refused - whether evidence misapprehended or given inappropriate weight - whether acted on wrong legal principle - whether so unreasonable must be error - no error shown.
LEGISLATION CITED:
CASES CITED:
Angaston & District Hospital v Thamm (1987) 47 SASR 177;
Re Association of Architects of Australia; Ex Parte Municipal Officers Association of Australia (1989) 63 ALJR 298;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577;
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304;
House v The King (1936) 55 CLR 499;
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2006) 221 ALR 823;
Jobst v Inglis (1986) 41 SASR 339;
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488;
Kassem v Crossley [2000] NSWCA 276; (2000) MVR 179;
Lindsay v Health Care Complaints Commission [2010] NSWCA 194;
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274;
Minigall v Ayres (1966) SASR 151;
Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 222;
Vukmirica v Betyounan [2008] NSWCA 16.
TEXTS CITED:
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 2010/19264
DC 2010/19264
GILES JA
SACKVILLE AJA
HARRISON J
Tuesday 2 November 2010
DUONG V TRAN
Judgment
GILES JA: On 29 March 2003, when the appellant was 16 months old, the respondent (the appellant’s mother) was reversing her motor vehicle in the driveway of the family home. She noticed that the front door of the house was open.…
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- AGLC
- Duong v Tran [2010] NSWCA 280
- Case
- [2010] NSWCA 280
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial judge’s conduct demonstrated apprehended bias. This involved examining an observation made by the judge during a ruling on pleadings, where the judge expressed "surprise" at a submission that counsel was "surprised" by the opponent's contention. Furthermore, the court had to consider whether the refusal of an adjournment, sought to allow for further testing of the appellant's alleged brain damage until the age of 11, constituted a denial of procedural fairness. This required assessing whether the judge had misapprehended evidence, given inappropriate weight to evidence, acted on a wrong legal principle, or made a decision so unreasonable as to indicate error.
The court found no apprehended bias. It reasoned that the judge's observation about surprise, while perhaps indicating a degree of candour, did not demonstrate a closed mind or a predisposition against the appellant's case. Regarding the refusal of the adjournment, the court held that the judge had not misapprehended the evidence or acted on incorrect legal principles. The judge had considered the relevant factors, including the appellant's age and the nature of the alleged injury, and had made a decision that was not so unreasonable as to constitute an error. The court also found no denial of procedural fairness in relation to an observation made by the judge that was relied upon in the judgment, as this issue had been raised in the addresses.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
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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