Special leave dismissed with costs by the High Court, 3 November 2009 s99/2009
New South Wales
Court of Appeal
CITATION:
Sangha v Baxter [2009] NSWCA 78
HEARING DATE(S):
2 March 2009
JUDGMENT DATE:
9 April 2009
JUDGMENT OF:
Tobias JA at 1; Basten JA at 131; Handley AJA at 161
DECISION:
(a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008; (b) Dismiss the respondent’s summons seeking leave to cross-appeal; (c) Appeal allowed; (d) The judgment of Judge McLoughlin of 29 May 2008 be set aside; (e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited; (f) The respondent to pay the appellant’s costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors’ Fund Act 1951, if other otherwise qualified; (g) No order for costs with respect to the respondent’s summons seeking leave to cross-appeal; (h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.
CATCHWORDS:
APPEAL – appeal – general principles – interference with Judge's findings of fact – functions of appellate court – findings on issue of negligence – where findings based on credibility of witnesses – where findings clearly wrong – particular cases – whether acts causing injury were carried out in self defence – whether contributory negligence established – whether injury occurred following commission of a serious offence by injured party – power to transfer proceedings in the District Court on a claim for damages to the Common Law Division of the Supreme Court – whether the case involves complex legal issues or issues of general public importance
Balraj Sangha Peter Marshall Baxter BHNF Laurna Baxter
FILE NUMBER(S):
CA 40265/08
COUNSEL:
A: M B Williams SC / R O'Keefe R: D Wheelahan QC / K Andrews
SOLICITORS:
A: Vardanega Roberts, Sydney R: Keddies, Sydney
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 2751/06
LOWER COURTJUDICIAL OFFICER:
McLoughlin DCJ
LOWER COURT DATE OF DECISION:
29 May 2008
CA 40265/08
TOBIAS JA BASTEN JA HANDLEY AJA
Thursday…
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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Details
AGLC
Sangha v Baxter [2009] NSWCA 78
Case
[2009] NSWCA 78
Decision Date
CaseChat Overview and Summary
Sangha (the applicant) appealed to the Court of Appeal of New South Wales against a decision of Judge McLoughlin. The dispute concerned a claim for damages arising from alleged acts of self-defence and contributory negligence.
The Court of Appeal was required to determine whether the primary judge's findings of fact, particularly those relating to negligence and self-defence, were demonstrably wrong, especially given their reliance on the credibility of witnesses. The court also considered whether the injury sustained by the respondent occurred following the commission of a serious offence by the respondent, and whether the proceedings involved complex legal issues or issues of general public importance warranting transfer to the Supreme Court.
The Court of Appeal found that the primary judge's findings of fact were clearly wrong and interfered with the judge's findings on the issue of negligence. The court applied the principle that appellate courts should be slow to overturn findings of fact based on witness credibility, but will do so if the findings are demonstrably wrong. The court concluded that the case involved issues of sufficient complexity and public importance to justify a retrial in the Supreme Court.
Consequently, the Court of Appeal granted the applicant leave to appeal, dismissed the respondent's cross-appeal, allowed the appeal, and set aside the judgment of Judge McLoughlin. The proceedings were remitted to the Common Law Division of the Supreme Court for an expedited retrial on all issues, with costs orders made accordingly.
Orders
Orders of the court
(a) Grant leave to appeal to the applicant from the decision of Judge McLoughlin of 29 May 2008; (b) Dismiss the respondent's summons seeking leave to cross-appeal; (c) Appeal allowed; (d) The judgment of Judge McLoughlin of 29 May 2008 be set aside; (e) The proceedings be remitted to the Common Law Division of the Supreme Court for retrial on all issues and that the retrial be expedited; (f) The respondent to pay the appellant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if other otherwise qualified; (g) No order for costs with respect to the respondent's summons seeking leave to cross-appeal; (h) The costs of the trials before Judge Garling and Judge McLoughlin be determined by the trial judge at the remitted trial.