Campbell JA at [1] Young JA at [71] Meagher JA at [72]
Decision:
1. Dismiss the summons seeking leave to appeal filed by Jaycar Pty Limited and Electus Distribution Pty Limited dated 4 March 2011, with costs.
2. Grant leave to appeal to Ross Lombardo concerning the judgment delivered in the court below on 24 June 2011.
3. Deem the draft Notice of Appeal contained in the White Book concerning that application to be filed.
4. Set aside the orders made in the court below on 24 June 2011.
5. In lieu thereof:
(i) Set aside order (ii) made by the court below on 25 May 2011 (in the reasons for judgment comprising 14 paragraphs delivered that day) and order (iii) made by the court below on 25 May 2011 (in the reasons for judgment comprising 75 paragraphs delivered that day); and
(ii) In lieu thereof order that the defendants pay the costs of the Plaintiff of the Notice of Motion to vary the judgment delivered on 8 December 2010.
6. Order Jaycar Pty Limited and Electus Distribution Pty Limited to pay the costs of Ross Lombardo of the application for leave to appeal referred to in Order 2 hereof, and of the resulting appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - costs - right of appeal - jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(r) - whether leave to appeal required - where small sum involved, no question of principle and no issue of general public importance - whether reasonably clear that the judge's conclusion about liability was wrong -
COSTS - UCPR 42.1 - costs follow the event - whether exception to general rule where costs have been incurred by reason of an error on the part of the court and that error has not been brought about by conduct of any party to the litigation - whether Notice of Motion to vary judgment is an indulgence where judgment does not determine all the claims before the court
Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Brittain v Commonwealth (No. 2)
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Case
[2011] NSWCA 284
Decision Date
CaseChat Overview and Summary
Jaycar Pty Ltd and Electus Distribution Pty Ltd (the defendants) appealed a District Court decision that found them liable for injuries sustained by Ross Lombardo (the plaintiff) due to a defective battery. The primary judge had awarded the plaintiff $39,281.70 in damages and ordered the defendants to pay the plaintiff's costs. The plaintiff subsequently filed a Notice of Motion seeking to vary the judgment, arguing that the judge had failed to determine his claim for breach of contract, which he contended would result in a higher damages award. The Court of Appeal considered both the defendants' application for leave to appeal and the plaintiff's application for leave to appeal.
The legal issues before the Court of Appeal included whether leave to appeal was required for the defendants' appeal, given the relatively small sum involved and the absence of a question of principle or general public importance. The court also had to determine whether the trial judge's conclusion regarding the defect in the battery and the failure of the defendants' statutory defence was demonstrably wrong. Furthermore, the court considered whether to grant the plaintiff leave to appeal the judgment and whether to vary the original orders, particularly concerning the determination of the breach of contract claim and the assessment of damages. The court also had to decide on the appropriate costs orders for the various applications and the appeal itself.
The Court of Appeal dismissed the defendants' summons seeking leave to appeal, finding that it was not reasonably clear that the judge's conclusion about liability was wrong. The court reasoned that the trial judge had properly considered the evidence, including expert testimony and the plaintiff's account of the battery's history, and had made findings of fact that were open to him. The judge's rejection of the defendants' defence was based on a lack of evidence to support alternative causes for the battery's disintegration, and the judge's finding of a defect in manufacture was supported by expert evidence. The court granted the plaintiff leave to appeal, setting aside the original orders. In lieu of those orders, the court set aside specific earlier orders relating to the variation of judgment and ordered that the defendants pay the plaintiff's costs of the Notice of Motion to vary the judgment.
The Court of Appeal ordered that Jaycar Pty Ltd and Electus Distribution Pty Ltd pay the costs of Ross Lombardo of the application for leave to appeal and the resulting appeal.
Orders
Orders of the court
1. Dismiss the summons seeking leave to appeal filed by Jaycar Pty Limited and Electus Distribution Pty Limited dated 4 March 2011, with costs.
2. Grant leave to appeal to Ross Lombardo concerning the judgment delivered in the court below on 24 June 2011.
3. Deem the draft Notice of Appeal contained in the White Book concerning that application to be filed.
4. Set aside the orders made in the court below on 24 June 2011.
5. In lieu thereof:
(i) Set aside order (ii) made by the court below on 25 May 2011 (in the reasons for judgment comprising 14 paragraphs delivered that day) and order (iii) made by the court below on 25 May 2011 (in the reasons for judgment comprising 75 paragraphs delivered that day); and
(ii) In lieu thereof order that the defendants pay the costs of the Plaintiff of the Notice of Motion to vary the judgment delivered on 8 December 2010.
6. Order Jaycar Pty Limited and Electus Distribution Pty Limited to pay the costs of Ross Lombardo of the application for leave to appeal referred to in Order 2 hereof, and of the resulting appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The trial of the District Court proceedings took place over four days in August and November 2010. The primary judge delivered judgment on 8 December 2010 (" the First Substantive Judgment "). In it, the judge held there was a "defect" in the battery. His Honour then rejected a defence that the Retailer had raised under s 74AK(1) TP Act . There was evidence that it was possible for disintegration of the battery to be caused by a defect in its manufacture, or by other matters. The only specific other matters identified as possible causes of the disintegration of the battery were: attempting to recharge it; dropping or mishandling it; or an external short circuit arising from the terminals of the battery coming into contact with a metal object such as a coin in the Plaintiff's pocket. The judge accepted that the Plaintiff (who was a handyman/painter by trade) had extensive experience with batteries. He accepted the evidence of the Plaintiff about the history of the battery from the time of purchase to its disintegration. The judge noted that it had not been put to the Plaintiff in cross-examination that the battery had been dropped or mishandled in any way. The judge took the view that whether other members of the Plaintiff's family may have used the battery and returned it to its storage place in the Plaintiff's home office was "mere speculation" . The judge accepted expert evidence from Mr Simon Cox, an expert called by the Plaintiff, to the effect that he had examined the disintegrated battery under a microscope and could see no evidence on the terminals of the battery of there having been any short-circuit between those terminals. Thus, because the Retailer was a deemed manufacturer of the battery, there was a "defect" in the battery, that defect had caused injury to the Plaintiff, and the Retailer's defence under s 74AK(1) failed (the defect being in manufacture), the Plaintiff was entitled to a verdict against the Retailer. The Importer had not filed a Defence. The judge found that, by reason of the Importer being a deemed manufacturer and there being a defect in the battery that caused injury to the Plaintiff, the Plaintiff was entitled to a verdict against the Importer. His Honour then calculated the damages, in accordance with the statutory limitations on quantum of personal injury damages that are required by Part VIB TP Act . He ordered that there be a verdict and judgment against both defendants in the sum of $39,281.70, and ordered both defendants to pay the Plaintiff's costs of the trial as agreed or assessed. That was far from the end of the litigation. The Plaintiff filed a Notice of Motion seeking a variation of the judgment given on 8 December 2010. There was no dispute that the Notice of Motion was filed within the time allowed by UCPR 36.16(3A). The basis upon which Mr D Toomey, counsel for the Plaintiff both in the court below and in the present applications, sought the variation of the judgment was that, even though the Plaintiff had sued for breach of contract, the judge had not determined that claim. Further, Mr Toomey submitted that the damages for breach of contract would be determined in accordance with the Civil Liability Act2002 , and would result in a higher quantum of damages than the quantum that the judge had already assessed under Part VIB TP Act . It is common ground that before the First Substantive Judgment was delivered Mr Toomey had addressed the judge on both the TP Act and the contractual causes of action. It is also common ground that Mr Toomey had drawn the judge's attention to there being different ground rules for assessment of damages under the Civil Liability Act to those that applied concerning Part VIB TPAct .