Whisprun Pty Ltd v Dixon (No 2)

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH AND GUMMOW JJ

WHISPRUN PTY LIMITED (Formerly
Northwest Exports Pty Limited)   APPELLANT

AND

SONYA LEA DIXON  RESPONDENT

Whisprun Pty Limited v Dixon [No 2]

[2004] HCA 2

5 February 2004
S216/2002

ORDER

Amend the orders made by this Court on 3 September 2003 by deleting the previous orders and substituting the following paragraphs:

1.Appeal allowed.

2.Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001.

3.Remit the matter to the Court of Appeal to determine whether "the further evidence" should be admitted and to take such further steps as are necessary to dispose of the appeal to that Court including the costs of the trial.

4.Respondent to pay the costs of the appeal to this Court and the proceedings in the Court of Appeal to date.

5.Each party to pay its or her costs of the notice of motion.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with S E Pritchard for the appellant (instructed by Hicksons Lawyers)

D F Jackson QC with K J Ryan and N G Ford for the respondent (instructed by Walker Kissane & Plummer)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GLEESON CJ, McHUGH AND GUMMOW JJ.   The issue in this Notice of Motion is whether the Court should vary the orders it made in an appeal decided last year and remit the matter to the Court of Appeal of New South Wales to determine whether it should admit further evidence and then re-hear the appeal.  The issue arises because, in giving judgment, the majority Justices did not deal with a contention of the unsuccessful respondent to the appeal.

2. On 3 September 2003, the Court made orders in an appeal brought by Whisprun Pty Limited ("Whisprun") against an order of the Court of Appeal for a new trial of an action for damages.  The orders of this Court were:

   1.        Appeal allowed with costs.

   2.Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

3. The effect of these orders was that the verdict entered in favour of Whisprun, the defendant in the trial, was reinstated.  At the trial, the respondent to the appeal in this Court, Ms Sonya Lea Dixon, had claimed that she suffered from chronic fatigue syndrome as the result of being infected with Q fever.  The trial judge accepted that Ms Dixon had contracted Q fever but, because of the view that he took of her credibility, he was not satisfied that she suffered from chronic fatigue syndrome as the result of contracting Q fever. 

4. The Court of Appeal set aside the verdict and judgment of the trial judge because it appeared to that Court that his Honour had not satisfactorily considered…