New South Wales
Court of Appeal
CITATION: Singler v Ferguson [2010] NSWCA 325 HEARING DATE(S): 15 and 16 September 2010
JUDGMENT DATE:
29 November 2010JUDGMENT OF: Beazley JA at 1; Young JA at 57; Handley AJA at 133 DECISION: 1. Appeal allowed;
2. Set aside the verdict and judgment for the respondent made in the Court below;
3. Order that the matter be remitted to the District Court for rehearing;
4. Save for the costs of 5 November and 1 December 2008, order that the costs of the first hearing at first instance abide the outcome of the new trial. The appellant is to pay the respondent’s costs of 5 November and 1 December 2008;
5. Order that the respondent pay the appellant’s costs of the appeal;
6. Order, pursuant to the Civil Procedure Act 2005, s 26, that prior to the matter being remitted, the proceedings are referred to mediation.
[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: EVIDENCE – medical evidence – medical evidence obtained during course of trial – whether party under a duty to disclose relevant medical evidence obtained during course of trial - EVIDENCE – credit – adverse credit finding contended for by counsel – proposition not put to witness – whether trial judge erred in relying on proposition not put to witness to make adverse credit finding - PROCEDURAL FAIRNESS – right to a fair trial – right of a party to be appraised of the case which he or she must meet – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 - PROCEDURAL FAIRNESS – right to a fair trial – material to which trial judge relied not put to appellant in cross-examination – whether adverse credit findings contended for by counsel should have been put to appellant in cross-examination – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Banbury v Bank of Montreal [1918] AC 626
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Duong v Tran [2010] NSWCA 280
Jones v National Coal Board [1957] 2 QB 55 at 67
Kuru v New South Wales [2008] HCA 26; 236 CLR 1
McCarthy v Law Society of NSW (1997) 43 NSWLR 42
Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298
Rhesa Shipping Co SA v Edmunds (The 'Popi M') [1985] 1 WLR 948
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Sullivan v Department of Transport (1978)…
Continue reading Singler v Ferguson
Sign in free to access the full text
- AGLC
- Singler v Ferguson [2010] NSWCA 325
- Case
- [2010] NSWCA 325
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the appellate court were whether the trial judge erred in admitting medical evidence obtained during the course of the trial without disclosure by the party who obtained it, and whether the trial judge improperly made adverse credit findings against the appellant based on propositions that had not been put to the appellant during cross-examination. These issues engaged principles of procedural fairness, specifically the right of a party to be appraised of the case they must meet, as established in *Stead v State Government Insurance Commission*.
The court found that the trial judge had erred in both respects. It was held that a party has a duty to disclose relevant medical evidence obtained during the trial, and that reliance on material not put to a witness in cross-examination to make adverse credit findings constitutes a denial of procedural fairness. Consequently, the appeal was allowed, the verdict and judgment for the respondent were set aside, and the matter was remitted to the District Court for a rehearing. The court also made orders regarding the costs of the first hearing and the appeal, and directed that the proceedings be referred to mediation prior to the rehearing.
Orders
Orders of the court
1. Appeal allowed;
2. Set aside the verdict and judgment for the respondent made in the Court below;
3. Order that the matter be remitted to the District Court for rehearing;
4. Save for the costs of 5 November and 1 December 2008, order that the costs of the first hearing at first instance abide the outcome of the new trial. The appellant is to pay the respondent’s costs of 5 November and 1 December 2008;
5. Order that the respondent pay the appellant’s costs of the appeal;
6. Order, pursuant to the Civil Procedure Act 2005, s 26, that prior to the matter being remitted, the proceedings are referred to mediation.
[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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.