Reported Decision: [2000] 32 MVR 179
New South Wales
Court of Appeal
CITATION: KASSEM v CROSSLEY & ANOR; KASSEM v KRAYEM & ANOR [2000] NSWCA 276 FILE NUMBER(S): CA 40930/98; 40931/98 HEARING DATE(S): 13 June 2000 JUDGMENT DATE:
13 June 2000PARTIES :
Jamal KASSEM v Roy CROSSLEY & Anor
Jamal KASSEM v Souhad KRAYEM & AnorJUDGMENT OF: Mason P at 1; Heydon JA at 31; Clarke AJA at 32
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :6249/97
6250/97LOWER COURT
JUDICIAL OFFICER :Blackman ADCJ
COUNSEL: Appellant: D Wheelahan QC/ M Sneddon
1st Respondent: J McIntyre
2nd Respondent: D RonzaniSOLICITORS: Appellant: Robinson Solicitors
1st Respondent: Ferguson Holz
2nd Respondent: Henry Davis YorkCATCHWORDS: Motor vehicle accident - damages - whether trial judge fairly disclosed intention to rely upon her observations of appellant’s behaviour in court room - trial judge’s silence as to intention to rely on observations until disclosed in reserved final judgment - appellant to have opportunity to persuade decision maker to a favourable view of conduct in question - denial of procedural fairness - (ND). DECISION: Appeal allowed. See par 30.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL1 MASON P: In each appeal, the appellant appeals against orders made in the District Court by her Honour Blackman ADCJ. He seeks a new trial as to damages. 2 The first action arose out of an accident in Parramatta Road on 10 May 1991 when the appellant's car was hit in the rear when it was stationary at traffic lights. Liability was admitted by the respondents, who were the owner and driver of the car involved. There was a live issue as to damages. The appellant recovered a verdict of $226,877.25. 3 The second action, which was tried at the same time, involved a car owned and driven by Mr Krayem and an accident that occurred in Bankstown on 18 July 1994. Again, liability was admitted but damages were not. There was a verdict for the defendant because her Honour concluded that the second accident had no effect on the appellant's lumbar back problem, nor caused any long term neck injury. 4 Her Honour formed a most adverse view as to the appellant's credit. She gave a number of reasons for this, including her observations of the appellant in the witness box, certain inherent improbabilities and inconsistencies between the appellant's evidence and that of other witnesses and other matters set out in the judgment. Whether the decision was also influenced by an irregularly formed view, based on her Honour's observations of the appellant in the courtroom, is the critical matter in the appeal to which I shall return. For the moment, it is sufficient to record that her Honour's strong views about the appellant were determinative of a number of…
CA 40930/98
CA 40931/98
Tuesday 13 June 2000
MASON P
HEYDON JA
CLARKE AJA
Jamal KASSEM v Roy CROSSLEY & Anor
Jamal KASSEM v Souhad KRAYEM & AnorJUDGMENT
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Details
- AGLC
- Kassem v Crossley [2000] NSWCA 276
- Case
- [2000] NSWCA 276
- Decision Date
CaseChat Overview and Summary
The appeal in *Kassem v Crossley* concerned a motor vehicle accident and the subsequent assessment of damages. The appellant, Kassem, appealed a decision made by a trial judge.
The central legal issue before the Court of Appeal was whether the trial judge had fairly disclosed her intention to rely upon her observations of the appellant's behaviour in the courtroom when reaching her final judgment. Specifically, the court considered whether the trial judge's silence on this matter until the reserved judgment was delivered constituted a denial of procedural fairness to the appellant.
The Court of Appeal held that the trial judge's failure to inform the appellant of her intention to rely on her observations of his courtroom demeanour denied him a procedural fairness. The court reasoned that an appellant should have an opportunity to address or persuade the decision-maker regarding any conduct that might be viewed unfavourably. By withholding this intention until the final judgment, the appellant was deprived of this opportunity.
The appeal was allowed.
The central legal issue before the Court of Appeal was whether the trial judge had fairly disclosed her intention to rely upon her observations of the appellant's behaviour in the courtroom when reaching her final judgment. Specifically, the court considered whether the trial judge's silence on this matter until the reserved judgment was delivered constituted a denial of procedural fairness to the appellant.
The Court of Appeal held that the trial judge's failure to inform the appellant of her intention to rely on her observations of his courtroom demeanour denied him a procedural fairness. The court reasoned that an appellant should have an opportunity to address or persuade the decision-maker regarding any conduct that might be viewed unfavourably. By withholding this intention until the final judgment, the appellant was deprived of this opportunity.
The appeal was allowed.
Orders
Orders of the court
Appeal allowed. See par 30.
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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