Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Zaya v Damirdjian [2022] NSWCA 203 Hearing dates: 31 August 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Before: Bell CJ at [1]
Gleeson JA at [2]
Griffiths AJA at [3]Decision: (1) The parties should seek to agree orders which give effect to these reasons for judgment, including in relation to costs of both the proceedings below and the appellate proceedings.
(2) If the parties are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions, not exceeding 5 pages in length, in support of their respective proposed orders.
(3) Within a further 7 days thereof, each party may file and serve within that time a brief outline of written submissions in response, not exceeding 3 pages in length.
(4) Unless any party demonstrates that a further hearing is required, the Court will determine final orders on the papers and without a further oral hearing.
Catchwords: NEGLIGENCE – Motor vehicle accident – Identity of vehicle in dispute – Whether primary judge erred in preferring evidence of a particular witness – Whether principles in Fox v Percy apply – Nominal Defendant held liable
NEGLIGENCE – Motor vehicle accident – Contributory negligence – Whether primary judge erred in not accepting evidence suggestive of speeding – No contributory negligence
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703
Bradley v Matloob [2015] NSWCA 239
Damirdjian, A v Nominal Defendant & Zaya; Damirdjian, C v Nominal Defendant & Zaya [2022] NSWDC 52
Darmidjian, C v Nominal Defendant & Zaya [2021] NSWDC 706
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sdrolias v Allianz Australia Ltd [2022] NSWCA 20
Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308; (2006) 150 LGERA 11
Solomans v Pallier [2015] NSWCA 266; (2015) 72 MVR 365
Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246
White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115
Texts Cited: NA
Category: Principal judgment Parties: Sam Zaya (Appellant/Cross-Respondent)
Armin Damirdjian (First Respondent/Cross-Appellant in 2022/00007355)
Christina Damirdjian (First Respondent/Cross-Appellant in 2022/00007356)
Nominal Defendant (Second Respondent/Cross-Appellant)Representation: Counsel:
Solicitors:
J Catsanos SC, B Jones (Appellant)
P Menzies QC, A J Parker, M McGirr (First Respondents/Cross-Appellants)
J Turnbull SC, J Sleight (Second Respondent/Cross-Appellant)
Sparke Helmore Lawyers (Appellant)
Gajic Lawyers (First Respondent)
Moray & Agnew (Second Respondent)
File Number(s): 2022/00007355
2022/00007356Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
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- AGLC
- Zaya v Damirdjian [2022] NSWCA 203
- Case
- [2022] NSWCA 203
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge had erred in preferring the evidence of a particular witness regarding the identity of the vehicle involved in the accident, and whether the principles established in *Fox v Percy* were applicable and correctly applied. Secondly, the Court had to consider whether the primary judge had erred in not accepting evidence that suggested the plaintiff was speeding, and therefore whether contributory negligence should have been found.
In its reasoning, the Court of Appeal affirmed the primary judge's findings. It held that the primary judge had not erred in preferring the evidence of the witness in question, finding that the judge had properly assessed the credibility and reliability of the evidence presented. The Court confirmed that the principles in *Fox v Percy* were relevant and had been correctly applied by the primary judge in assessing the evidence. Furthermore, the Court found no error in the primary judge's conclusion that there was insufficient evidence to establish contributory negligence on the part of the plaintiff, including the evidence relating to speeding.
The Court of Appeal ordered that the parties should seek to agree on orders giving effect to the judgment, including costs for both the original proceedings and the appeal. If agreement could not be reached within 28 days, further written submissions were to be filed regarding proposed orders, with a further opportunity for responsive submissions. The Court indicated it would determine the final orders on the papers unless a further hearing was demonstrated to be necessary.
Orders
Orders of the court
(1) The parties should seek to agree orders which give effect to these reasons for judgment, including in relation to costs of both the proceedings below and the appellate proceedings.
(2) If the parties are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions, not exceeding 5 pages in length, in support of their respective proposed orders.
(3) Within a further 7 days thereof, each party may file and serve within that time a brief outline of written submissions in response, not exceeding 3 pages in length.
(4) Unless any party demonstrates that a further hearing is required, the Court will determine final orders on the papers and without a further oral hearing.
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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