Sexton v Homer

Case [2013] NSWCA 414

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sexton v Homer [2013] NSWCA 414
Hearing dates:26 July 2013
Decision date: 05 December 2013
Before: Basten JA;
Leeming JA;
Garling J
Decision:

(1) Allow the appeal and set aside the orders made in the District Court.

(2) Direct that there be a new trial of the plaintiff's claim.

(3) Direct that the costs of the first trial be in the discretion of the judge presiding at the new trial.

(4) Order that the respondent pay the appellant's costs of the appeal.

(5) Grant the respondent a certificate under Suitors' Fund Act 1951 (NSW).

[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 - challenge to findings of fact - challenge to contingent finding of contributory negligence - retrial required

EVIDENCE - client legal privilege - whether statement of defendant obtained by investigator for use by insurer is privileged - whether trial judge correctly assessed dominant purpose of statement - whether document a confidential communication - Evidence Act 1995 (NSW), ss 117, 118

NEGLIGENCE - motorcycle accident - damages agreed - whether question of liability was correctly determined - trial judge reasons do not record process of resolving disputed facts - erroneous fact-finding process
Legislation Cited: Evidence Act 1995 (NSW), s 138
Motor Accidents Compensation Act 1999 (NSW), ss 117-119
Cases Cited: Coote v Kelly [2013] NSWCA 357
Fox v Percy [2003] HCA 22; 214 CLR 118
Gaskin v Ollerenshaw [2012] NSWCA 33
Keith v Gal [2013] NSWCA 339
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702
Category:Principal judgment
Parties: Callum Sexton (Appellant)
Martin David Home (Respondent)
Representation:

Counsel:

D R Campbell SC / D R Toomey (Appellant)
P Deakin QC / A Davis (Respondent)
Solicitors:

Beston Macken McManis (Appellant)
Sparke Helmore (Respondent)
File Number(s):2012/44462
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2012-02-01 00:00:00
Before:
Johnstone DCJ
File Number(s):
2010/144211

Judgment

  1. THE COURT: The appellant, Mr Callum Sexton, was badly injured in a motor vehicle accident on 16 May 2008, when he was riding his motorcycle south on Malinya Road, Davistown, and was struck by a motor car driven by the respondent, Mr Martin Homer at a T-intersection where Emora Avenue joined Malinya Road. It is convenient to refer to the…

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AGLC
Sexton v Homer [2013] NSWCA 414
Case
[2013] NSWCA 414
Decision Date

CaseChat Overview and Summary

The appeal in *Sexton v Homer* concerned a dispute arising from a motorcycle accident. The appellant, Mr. Sexton, challenged findings of fact made by the trial judge in the District Court, including a contingent finding of contributory negligence.

The primary legal issues before the Court of Appeal were whether the trial judge had correctly determined the question of liability, given that the reasons for judgment did not adequately record the process by which disputed facts were resolved. A further issue involved the admissibility of a statement obtained by an investigator for use by the insurer, specifically whether it was protected by client legal privilege under the *Evidence Act 1995* (NSW), considering its dominant purpose and confidential nature.

The Court of Appeal found that the trial judge's fact-finding process was erroneous, leading to an improper determination of liability. Consequently, the appeal was allowed, and the orders made in the District Court were set aside.

The Court of Appeal directed that there be a new trial of the plaintiff's claim. The costs of the first trial were left to the discretion of the judge presiding at the new trial, while the respondent was ordered to pay the appellant's costs of the appeal. A certificate under the *Suitors' Fund Act 1951* (NSW) was also granted to the respondent.

Orders

Orders of the court

(1) Allow the appeal and set aside the orders made in the District Court.

(2) Direct that there be a new trial of the plaintiff's claim.

(3) Direct that the costs of the first trial be in the discretion of the judge presiding at the new trial.

(4) Order that the respondent pay the appellant's costs of the appeal.

(5) Grant the respondent a certificate under Suitors' Fund Act 1951 (NSW).

[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

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Ratio Decidendi

Legal Principle Established

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