Tsueneaki v Stewart

Case [2013] ACTCA 34


AOKI TSUENEAKI v ROD STEWART
[2013] ACTCA 34 (19 August 2013)

APPEAL AND NEW TRIAL – practice and procedure – application to admit new or late evidence – inevitable delay – considered Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 – prejudice of substantial delay and wasted costs to parties and other litigants – evidence rightly rejected – appeal dismissed
APPEAL AND NEW TRIAL – delay in delivering judgment – no indication of loss of advantage of seeing and hearing witness – no deprivation to defendant of forensic advantage otherwise enjoyed – appeal dismissed
APPEAL AND NEW TRIAL – alleged error in determining economic loss – “possibility” not certainty of early retirement enforced by future disability – submitted that “buffer” value excessive – award deemed reasonable in circumstances – appeal dismissed

Court Procedure Rules 2006 (ACT)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009); (2009) 239 CLR 175
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (6 November 2009)
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
O’Brien v Noble [2012] ACTCA 13
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 43 - 2012
No. SC 187 of 2009

Judges:        Higgins CJ, Burns and Gilmour JJ
Court of Appeal of the Australian Capital Territory
Date:           19 August 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 - 2012
  )          No. SC 187 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AOKI TSUENEAKI

Appellant

AND:ROD STEWART

Respondent

ORDER

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  19 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 - 2012
  )          No. SC 187 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AOKI TSUENEAKI

Appellant

AND:ROD STEWART

Respondent

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  19 August 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from a decision of Master Harper handed down on 24 August 2012.  His Honour ordered the entry of judgment for the plaintiff, Rod Stewart, the current respondent, in the sum of $336,646.00.

  1. The grounds of appeal as amended on 17 October 2012 are stated to be:

1.3       the grounds of appeal are:

(a)the court below erred in law by denying procedural fairness in that it failed to give proper, genuine and realistic consideration of the evidence in assessing damages for general damages, interest on general damages, loss of earning capacity, loss of superannuation benefits and deprived…

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AGLC
Tsueneaki v Stewart [2013] ACTCA 34
Case
[2013] ACTCA 34
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Tsueneaki and Stewart, heard by the court. The core of the disagreement revolved around the admission of new or late evidence, the delay in delivering judgment, and the assessment of economic loss.

The court was required to determine whether the trial judge erred in rejecting the application to admit new evidence, considering the principles established in *Aon Risk Services Australia Limited v Australian National University*. It also had to consider whether the delay in delivering judgment prejudiced the defendant, and whether the trial judge's assessment of economic loss, specifically the "buffer" for the possibility of early retirement due to future disability, was excessive.

Regarding the admission of new evidence, the court found that the substantial delay and the associated wasted costs to the parties and other litigants justified the rejection of the late evidence, aligning with the principles in *Aon Risk Services*. On the issue of judgment delay, the court determined there was no indication that the defendant was deprived of a forensic advantage, such as the loss of the advantage of seeing and hearing a witness. Furthermore, the court found the award for economic loss to be reasonable, acknowledging the "possibility" of early retirement due to future disability and deeming the "buffer" value appropriate in the circumstances.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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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