Hare v Harmer

Case [2009] NSWCA 68

New South Wales


Court of Appeal


CITATION: Hare v Harmer [2009] NSWCA 68
HEARING DATE(S): 24 March 2009
 
JUDGMENT DATE: 
8 April 2009
JUDGMENT OF: Macfarlan JA at 1; Handley AJA at 2; Sackville AJA at 3
DECISION: 1. Appeal allowed.
2. Set aside Orders 1 and 2 made by the primary Judge on 14 March 2008.
3. Direct that a new trial be held, limited to the question of whether or not the respondent is liable in damages to the appellant in respect of the injuries sustained by the appellant on 6 November 1999 at Kooringal (including, if necessary, determining whether any award of damages should be reduced by reason of the appellant’s contributory negligence and, if so, by what proportion).
4. Subject to Order 5, direct that the new trial proceed on evidence already admitted by the primary Judge.
5. Direct that the primary Judge may admit further evidence upon application by either party, should her Honour consider it appropriate to do so in the interests of justice.
6. The respondent to pay the appellant’s costs of the appeal.
7. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled.
8. Costs of the trial and of the new trial to be determined by the primary Judge.
CATCHWORDS: APPEAL - appeal - general principles - interference with Judge's findings of fact - misapprehension of evidence by primary Judge - adequacy of reasons behind factual finding - whether substantial wrong or miscarriage of justice - APPEAL - new trial - whether court should make findings of fact on disputed matters or order new trial
LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Suitors' Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY: Principal judgment
CASES CITED: Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375; 70 NSWLR 394
Mastronardi v State of New South Wales [2007] NSWCA 54
Tory v Megna [2007] NSWCA 13
Warren v Coombes [1979] HCA 9; 142 CLR 531
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
PARTIES: Gavin Brian Hare (appellant)
Luke Harmer (respondent)
FILE NUMBER(S): CA 40177 of 2008
COUNSEL: M J Cranitch SC/ M B Inglis (appellant)
B Hull (respondent)
SOLICITORS: Commins Hendriks (appellant)
George Mallos Lawyer (respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 86 of 2004
LOWER COURT JUDICIAL OFFICER: Sidis DCJ
LOWER COURT DATE OF DECISION: 14 March 2008
LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWDC 25





                          CA 40177 of 2008

                          MACFARLAN JA
                          HANDLEY AJA
                          SACKVILLE AJA

                          8 April 2009
Gavin Brian HARE v Luke HARMER
Judgment

1 MACFARLAN JA: I agree with Sackville AJA.

2 HANDLEY AJA: I agree with Sackville AJA.

3 SACKVILLE AJA: This is an appeal from a judgment of a Judge of the District Court entering a verdict for the defendant. The appellant, the plaintiff in the District Court proceedings, sought damages in respect of serious injuries…

Continue reading Hare v Harmer

Sign in free to access the full text

Details
AGLC
Hare v Harmer [2009] NSWCA 68
Case
[2009] NSWCA 68
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Hare, and the respondent, Harmer, regarding injuries sustained by the appellant. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary Judge had misapprehended the evidence, whether the reasons provided for the factual findings were adequate, and whether a substantial wrong or miscarriage of justice had occurred. The court was also required to determine whether it should make findings of fact on disputed matters or order a new trial.

The Court of Appeal found that the primary Judge had misapprehended the evidence and that the reasons for the factual findings were inadequate, leading to a substantial wrong or miscarriage of justice. Consequently, the court allowed the appeal, set aside the orders of the primary Judge, and directed that a new trial be held. This new trial was to be limited to determining the respondent's liability for the appellant's injuries, including any contributory negligence. The new trial would generally proceed on the existing evidence, but the primary Judge retained discretion to admit further evidence if deemed appropriate. The respondent was ordered to pay the appellant's costs of the appeal, with the costs of the trial and the new trial to be determined by the primary Judge.

Orders

Orders of the court

1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 14 March 2008. 3. Direct that a new trial be held, limited to the question of whether or not the respondent is liable in damages to the appellant in respect of the injuries sustained by the appellant on 6 November 1999 at Kooringal (including, if necessary, determining whether any award of damages should be reduced by reason of the appellant's contributory negligence and, if so, by what proportion). 4. Subject to Order 5, direct that the new trial proceed on evidence already admitted by the primary Judge. 5. Direct that the primary Judge may admit further evidence upon application by either party, should her Honour consider it appropriate to do so in the interests of justice. 6. The respondent to pay the appellant's costs of the appeal. 7. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. 8. Costs of the trial and of the new trial to be determined by the primary Judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.