New South Wales
Court of Appeal
CITATION: Transfield Construction v Peers [2008] NSWCA 215 HEARING DATE(S): 16 July 2008
JUDGMENT DATE:
5 September 2008JUDGMENT OF: McColl JA at 1; Campbell JA at 2; Barr J at 175 DECISION: (1) Appeal allowed.
(2) Set aside the judgment in the court below.
(3) Remit the matter to the District Court for re-trial.
(4) Respondent to pay costs of the Appellant of the appeal. Respondent to have a certificate under the Suitors Fund Act 1951 if entitled.
(5) Costs of the hearing in the court below reserved to the judge who hears the new trial.CATCHWORDS: TORTS – Breach of statutory duty – availability of defence of contributory negligence to cause of action that accrued before Civil Liability (Personal Responsibility) Act 2002 took effect - PROCEDURE – Courts and judges generally – criteria for appeal against discretionary judgment – where trial judge permitted evidence by telephone – r 31.3 Uniform Civil Procedure Rules 2005 – where counsel for appellant did not object to reception of evidence by telephone in proceedings below - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – where significant conflicts in evidence – whether relevant evidence set out – whether reasons given for concluding plaintiff’s account of events correct – whether question of how conflict in evidence should be dealt with addressed – whether consideration given to weight to be accorded to evidence of expert witness – where serious error in report of that witness – whether consideration given to effect of erroneous statement in expert’s report on reliability of views expressed by other experts proceeding on basis that statement correct - NEW TRIAL – Particular grounds – whether conflicts in evidence and questions of credit can be decided on the transcript – whether any alternative to having a new trial LEGISLATION CITED: Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Construction Safety Regulations 1950
Interpretation Act 1987
Law Reform (Miscellaneous Provisions) Act 1965
Statutory Duties (Contributory Negligence) Act 1945
Suitors Fund Act 1951CATEGORY: Principal judgment CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
House v R [1936] HCA 40; (1936) 55 CLR 499
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313TEXTS CITED: Ritchie’s Uniform Civil Procedure PARTIES: Transfield Construction Pty Ltd (Appellant)
Matthew Mark Peers (Respondent)FILE NUMBER(S): CA 40485/07 COUNSEL: L King SC; N Polin (Appellant)
S Norton SC; TM Fraser (Respondent)SOLICITORS: DLA Phillips Fox, Sydney (Appellant)
Koffels, Sydney (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 4099/03 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 15/6/07; 5/7/07
CA 40485/07
DC 4099/03McCOLL JA
CAMPBELL JA
BARR J
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- AGLC
- Transfield Construction v Peers [2008] NSWCA 215
- Case
- [2008] NSWCA 215
- Decision Date
CaseChat Overview and Summary
The appeal in *Transfield Construction v Peers* concerned a dispute arising from a cause of action that accrued before the commencement of the *Civil Liability (Personal Responsibility) Act 2002*. The primary legal issues before the Court of Appeal of New South Wales were whether the defence of contributory negligence was available in such circumstances, and whether the trial judge had erred in permitting evidence to be given by telephone, in contravention of rule 31.3 of the *Uniform Civil Procedure Rules 2005*. Further, the court considered whether the trial judge's reasons for judgment were inadequate, particularly in light of significant conflicts in the evidence, the failure to set out relevant evidence, and the absence of clear reasons for preferring the plaintiff's account of events. The adequacy of the judge's consideration of the weight to be accorded to an expert witness's evidence, especially where there was a serious error in that witness's report, was also a key issue.
The Court of Appeal found that the trial judge had erred in several respects. Firstly, the court determined that the defence of contributory negligence was available to the defendant, notwithstanding that the cause of action accrued before the *Civil Liability (Personal Responsibility) Act 2002*. Secondly, the court held that the trial judge's decision to permit evidence by telephone was a departure from the rules and that, in the absence of objection from the appellant's counsel, this alone might not have been sufficient grounds for appeal. However, the court concluded that the trial judge's reasons for judgment were inadequate. The judge failed to adequately address the significant conflicts in the evidence, the weight to be given to the expert evidence, and the impact of an error in an expert report on the reliability of other expert opinions. The court considered whether the conflicts in evidence and questions of credit could be decided on the transcript, but ultimately concluded that a new trial was necessary.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and remitted the matter to the District Court for a re-trial. The respondent was ordered to pay the costs of the appeal, with a certificate under the *Suitors Fund Act 1951* available if entitled. The costs of the hearing in the court below were reserved to the judge who would hear the new trial.
The Court of Appeal found that the trial judge had erred in several respects. Firstly, the court determined that the defence of contributory negligence was available to the defendant, notwithstanding that the cause of action accrued before the *Civil Liability (Personal Responsibility) Act 2002*. Secondly, the court held that the trial judge's decision to permit evidence by telephone was a departure from the rules and that, in the absence of objection from the appellant's counsel, this alone might not have been sufficient grounds for appeal. However, the court concluded that the trial judge's reasons for judgment were inadequate. The judge failed to adequately address the significant conflicts in the evidence, the weight to be given to the expert evidence, and the impact of an error in an expert report on the reliability of other expert opinions. The court considered whether the conflicts in evidence and questions of credit could be decided on the transcript, but ultimately concluded that a new trial was necessary.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and remitted the matter to the District Court for a re-trial. The respondent was ordered to pay the costs of the appeal, with a certificate under the *Suitors Fund Act 1951* available if entitled. The costs of the hearing in the court below were reserved to the judge who would hear the new trial.
Orders
Orders of the court
(1) Appeal allowed. (2) Set aside the judgment in the court below. (3) Remit the matter to the District Court for re-trial. (4) Respondent to pay costs of the Appellant of the appeal. Respondent to have a certificate under the Suitors Fund Act 1951 if entitled. (5) Costs of the hearing in the court below reserved to the judge who hears the new trial.
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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