New South Wales
Court of Appeal
CITATION: Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 HEARING DATE(S): 6 March 2008, 7 March 2008
JUDGMENT DATE:
8 April 2008JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Basten JA at 77 DECISION: (1) Dyldam’s appeal dismissed with costs.
(2) Bricklaying’s cross-appeal upheld in part.
(3) Each party to pay their own costs in relation to Bricklaying’s cross-appeal, and the plaintiff to have a certificate under the Suitor’s Fund Act in respect of his own costs.
(4) The parties to bring in Short Minutes to give further effect to this judgment.CATCHWORDS: APPEAL – Challenge to findings of fact and primary judge’s reasons – Whether reasons disclosed errors or were insufficient. - EVIDENCE – Document tendered at trial which should have been produced earlier on subpoena – inability of other party to test evidence without adjournment – Document rejected pursuant to s135 of the Evidence Act 1995 – Whether danger that the evidence might be unfairly prejudicial or cause undue waste of time. - DAMAGES – Economic loss – Pre-accident tax returns showing low income – Economic loss calculated by primary judge at a rate higher than income for 8 months prior to accident and as shown in the income tax returns – Whether reasons should have been given for disregarding the record of pre-accident earnings. LEGISLATION CITED: Civil Liabilities Act 2002 s 13
Evidence Act 1995 (NSW) s 135
Workplace Injury Management and Workers Compensation Act (s 318(1)(d))CATEGORY: Principal judgment CASES CITED: Ainsworth v Burden [2005] NSWCA 174
Andrews v Nominal Defendant (1963) SR(NSW) 110
Bakerland Pty Ltd v Coleridge [2002] NSWCA 30
Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509
CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172
Clark [2001] NSWCCA 494; 123 A Crim R 506
Commonwealth of Australia v McLean (1997) 41 NSWLR 389
Driscoll v The Queen (1977) 137 CLR 517
Giorginis v Kastrati (1988) 49 SASR 371
House v The King (1936) 55 CLR 499
Ordukaya v Hicks [2000] NSWCA 180
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1; 77 ALJR 1449
Warren v Coombes (1979) 142 CLR 531PARTIES: DYLDAM DEVELOPMENTS PTY LIMITED (Appellant)
Warren JONES (First Respondent)
SAMORTO 13 PTY LIMITED (in liquidation) (Second Respondent)FILE NUMBER(S): CA 40531/07 COUNSEL: J GRAVES SC (Appellant)
S NORTON SC/ J de GREENLAW (First Respondent) L KING SC/ M J JENKINS (Second Respondent)SOLICITORS: Hicksons (Appellant)
Bale Boshev Lawyers (First Respondent)
Home Wilkinson Lowry (Second Respondent)LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20355/06 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 13 July 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752
CA 40531/07
SC 20355/06GILES JA
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Details
- AGLC
- Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56
- Case
- [2008] NSWCA 56
- Decision Date
CaseChat Overview and Summary
Dyldam Developments Pty Limited appealed to the Court of Appeal of New South Wales against findings of fact and the reasons of the primary judge in a dispute concerning economic loss. The primary judge had awarded damages for economic loss to the respondent, Mr Jones, which Dyldam argued were excessive and not adequately supported by the evidence.
The central legal issues before the Court of Appeal were whether the primary judge's reasons for disregarding Mr Jones' pre-accident earnings, as evidenced by his tax returns, were insufficient, and whether the rejection of a document tendered late by Dyldam under section 135 of the *Evidence Act 1995* (NSW) was an error. The document in question had been produced late on subpoena, and its rejection was based on the risk of unfair prejudice or undue waste of time.
The Court of Appeal found that the primary judge's reasons for calculating economic loss at a rate higher than Mr Jones' pre-accident income, as shown in his tax returns, were sufficiently explained. The court also upheld the primary judge's decision to reject the late-tendered document, concluding that its admission would have created a danger of unfair prejudice or undue waste of time, consistent with the principles in section 135 of the *Evidence Act 1995*.
Consequently, Dyldam's appeal was dismissed with costs. However, Mr Jones' cross-appeal was upheld in part, with specific orders regarding costs and the provision of a certificate under the Suitor's Fund Act. The parties were directed to bring in Short Minutes to give further effect to the judgment.
The central legal issues before the Court of Appeal were whether the primary judge's reasons for disregarding Mr Jones' pre-accident earnings, as evidenced by his tax returns, were insufficient, and whether the rejection of a document tendered late by Dyldam under section 135 of the *Evidence Act 1995* (NSW) was an error. The document in question had been produced late on subpoena, and its rejection was based on the risk of unfair prejudice or undue waste of time.
The Court of Appeal found that the primary judge's reasons for calculating economic loss at a rate higher than Mr Jones' pre-accident income, as shown in his tax returns, were sufficiently explained. The court also upheld the primary judge's decision to reject the late-tendered document, concluding that its admission would have created a danger of unfair prejudice or undue waste of time, consistent with the principles in section 135 of the *Evidence Act 1995*.
Consequently, Dyldam's appeal was dismissed with costs. However, Mr Jones' cross-appeal was upheld in part, with specific orders regarding costs and the provision of a certificate under the Suitor's Fund Act. The parties were directed to bring in Short Minutes to give further effect to the judgment.
Orders
Orders of the court
(1) Dyldam's appeal dismissed with costs. (2) Bricklaying's cross-appeal upheld in part. (3) Each party to pay their own costs in relation to Bricklaying's cross-appeal, and the plaintiff to have a certificate under the Suitor's Fund Act in respect of his own costs. (4) The parties to bring in Short Minutes to give further effect to this judgment.
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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