Transfield Construction v Peers

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.