McColl JA at [1], Hoeben JA at [106], Tobias AJA at [109]
Decision:
1 Appeal allowed.
2 Set aside the verdict and judgment for the plaintiff ordered by Williams DCJ on 22 November 2011.
3. Direct the parties, if they are able to agree as to the amount of damages recalculated in accordance with this judgment, to lodge with the Court within seven days of the date of this judgment a form of consent order to be made by the Court in chambers. 4. In the event the parties are unable to agree as to the amount of damages direct that: (a) within seven days of the date of this judgment the appellant lodge with the Court a submission identifying the orders that he contends should be made to give effect to this judgment, together with submissions in support of that contention; (b) within seven days thereafter the respondents lodge a reply to the appellant's submissions; (c) within a further seven days the appellant lodge any submission in reply to that of the respondents.
5. Cross-appeal dismissed.
6. Respondents to pay the appellant's costs of the appeal and the cross-appeal and have a certificate under the Suitors' Fund Act 1951, if qualified.
[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:
DAMAGES - accident at workplace - damages for past economic loss - quantification of lost earning capacity - where appellant's lost earning capacity not reflected by income disclosed in tax returns - whether falsity of tax returns must be admitted before allowance could be made on that basis
DAMAGES - damages for future economic loss - award of superannuation - whether appellant was employee or independent contractor - whether appellant qualified for superannuation under Superannuation Guarantee (Administration) Act 1992 (Cth)
PROCEDURE - responsibility of legal advisers to ensure best evidence of lost earning capacity is adduced at trial
[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
Morvatjou v Moradkhani [2013] NSWCA 157
Case
[2013] NSWCA 157
Decision Date
CaseChat Overview and Summary
In *Morvatjou v Moradkhani*, the appellant, Mr. Morvatjou, appealed a decision of the District Court of New South Wales concerning damages awarded for past and future economic loss following a workplace accident. The respondent, Mr. Moradkhani, was the employer. The core of the dispute revolved around the quantification of Mr. Morvatjou's lost earning capacity, particularly where his disclosed income in tax returns did not accurately reflect his actual earnings. A cross-appeal was also dismissed.
The legal issues before the Court of Appeal were twofold. Firstly, it had to determine whether the falsity of tax returns needed to be admitted before an allowance could be made for a lost earning capacity that exceeded the disclosed income. Secondly, the court was required to consider whether Mr. Morvatjou qualified for an award of superannuation for future economic loss, which depended on whether he was an employee or an independent contractor for the purposes of the *Superannuation Guarantee (Administration) Act 1992* (Cth). The court also considered the responsibility of legal advisers to adduce the best available evidence of lost earning capacity.
The Court of Appeal allowed the appeal, setting aside the original verdict and judgment. The court reasoned that it was open to infer a higher earning capacity than that disclosed in tax returns, even without an admission of falsity, provided there was sufficient evidence to support such an inference. The court also found that Mr. Morvatjou was an employee for the purposes of the superannuation legislation. The court ordered that the original verdict and judgment be set aside and directed the parties to attempt to agree on a recalculated amount of damages. If agreement could not be reached, detailed submissions were to be made to the court to determine the appropriate orders. The cross-appeal was dismissed, and the respondents were ordered to pay the appellant's costs.
Orders
Orders of the court
1 Appeal allowed.
2 Set aside the verdict and judgment for the plaintiff ordered by Williams DCJ on 22 November 2011.
3. Direct the parties, if they are able to agree as to the amount of damages recalculated in accordance with this judgment, to lodge with the Court within seven days of the date of this judgment a form of consent order to be made by the Court in chambers.
4. In the event the parties are unable to agree as to the amount of damages direct that:
(a) within seven days of the date of this judgment the appellant lodge with the Court a submission identifying the orders that he contends should be made to give effect to this judgment, together with submissions in support of that contention;
(b) within seven days thereafter the respondents lodge a reply to the appellant's submissions;
(c) within a further seven days the appellant lodge any submission in reply to that of the respondents.
5. Cross-appeal dismissed.
6. Respondents to pay the appellant's costs of the appeal and the cross-appeal and have a certificate under the Suitors' Fund Act 1951, if qualified.
[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.]