SPIGELMAN CJ MASON P POWELL JA BEAZLEY JA STEIN JA
Friday, 17 December 1999
Paula Hinemoa SULLIVAN v Anthony Lance GORDON (NO 2)
JUDGMENT
1 THE COURT: The Court delivered judgment in this matter on 22 September 1999.
2 Subsequent to delivering judgment, senior counsel for the respondent has written to the Court submitting that the Court appears to have overlooked the respondent’s submission that a new trial on damages should be ordered if it proposed to uphold the appellant’s submission that Burnicle v Cutelli [1982] 2 NSWLR 26 was no longer good law in New South Wales so that damages could be awarded on a Griffiths v Kerkemeyer (1977) 139 CLR 161 basis for the loss of capacity to care for, in this case, a child.
3 The submission was not overlooked, although no mention of it is made in the judgments of the Court. The basis upon which the submission for a new trial was made was that if Burnicle v Cutelli was held not to apply, the respondent would wish to further cross-examine the appellant and her mother in respect of care of the child and call further evidence in respect of the need for this care. The Court was reminded that the correctness of Burnicle v Cutelli was raised as an issue by the Court of Appeal and had not been raised at trial.
4 It is true that the Court was reconstituted to argue the correctness of Burnicle v Cutelli. The reason for that was simple. The appellant had argued at trial that she was entitled to have included in the Griffiths v Kerkemeyer component of her damages claim an amount which reflected her need to have her child cared for, her inability to do so being due to the injuries received in the subject accident. Such a component of a Griffiths v Kerkemeyer entitlement was expressly rejected by this Court in Burnicle v Cutelli. For the appellant to be successful on this aspect of the appeal, it had to be demonstrated that Burnicle v Cutelli was no longer good law in New South Wales. No one directed attention to that decision either at trial…
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.
Continue reading Sullivan v Gordon (No 2)
Sign in free to access the full text
Details
AGLC
Sullivan v Gordon (No 2) [1999] NSWCA 472
Case
[1999] NSWCA 472
Decision Date
CaseChat Overview and Summary
Sullivan v Gordon (No 2) concerned an appeal to the New South Wales Court of Appeal following a trial in the Supreme Court of New South Wales. The parties involved were the appellant, Sullivan, and the respondent, Gordon. The core of the dispute revolved around whether a new trial was necessary in light of issues that had been raised during the initial proceedings.
The primary legal issue before the Court of Appeal was to determine whether the issues presented at the first instance had been sufficiently canvassed and determined to avoid the need for a new trial. This involved an assessment of the adequacy of the original proceedings in addressing the substantive matters in dispute between the parties.
The Court of Appeal considered the arguments presented by the parties regarding the conduct of the trial and the scope of the issues that had been litigated. The judges analysed whether the original trial had provided a fair opportunity for all relevant matters to be raised and decided. Ultimately, the Court concluded that the issues had been sufficiently raised at first instance, and therefore, a new trial was not warranted.