Smith v Advanced Electrics Pty Ltd

[2003] QCA 432

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Advanced Electrics P/L [2003] QCA 432

PARTIES:

TREVOR ANDREW SMITH
(plaintiff/appellant)
v
ADVANCED ELECTRICS PTY LTD ACN 010 928 177
(defendant/respondent)

FILE NO/S:

Appeal No 7725 of 2002
SC No 4427 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2003

JUDGES:

McMurdo P, Jerrard JA and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J concurring as to the orders made, Jerrard JA dissenting in part

ORDERS:

Appeal allowed1.       

Set aside the order of Ambrose J made on 26 July 20022.       

In lieu thereof:3.       

(a) declare that Trevor Andrew Smith was on 25 September 1997 and still is under a disability within the meaning of s 29 of the Limitation of Actions Act 1974 (Qld);

(b)     declare that the period within which under that section Trevor Andrew Smith may bring an action to recover damages in respect of personal injury sustained by him on 25 September 1997 has not expired;

 (c)    order that the respondent pay the applicant's costs of and incidental to the application to be assessed

4.      Order that the respondent pay the appellant's costs of and incidental to the appeal to be assessed

CATCHWORDS:

EVIDENCE – Witnesses – Impeaching and re-establishing credit and evidence in contradiction – Impeachment of credit – General principles – Whether necessary for cross-examination – Intended contradiction of witness’s evidence – Failure to put matter to witness – Breach of the rule in Browne v Dunn – Consequences of breach

Limitation of Actions Act 1974 (Qld), s 29

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, followed
King v Coupland [1981] Qd R 121, followed
R v Birks (1990) 19 NSWLR 677, followed
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, considered

COUNSEL:

J Crowley QC, with R Trotter, for the appellant
D North SC for the respondent

SOLICITORS:

Shane Ellis Lawyer for the appellant
Minter Ellison for the respondent

1. McMURDO P:  I agree with the reasons for judgment of Fryberg J and with the orders he proposes.

1. JERRARD JA:  In this matter I have read the reasons for judgment of Fryberg J, and the orders proposed by his Honour.  I respectfully agree that the appeal should be allowed and the order made 26 July 2002 set aside, and with his Honour’s comments on the rule in Browne v Dunn.  I further agree that the respondent should pay the applicant’s costs of and incidental to the application heard on 22 July 2002, such costs to be assessed on the standard basis; and that the respondent should pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis.  However, I respectfully disagree with his proposed orders 3(a) and (b), and would order instead that the application by Trevor Andrew Smith dated 13…