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[1993] NSWCA 169
Court of Appeal (NSW)
1993-09-21
Bryson J, Mahoney JA, Kirby P, Sheller JA
Original judgment source is linked above.
For the reasons I have given, it was in my opinion open to a tribunal of fact to find for the plaintiff upon one or more of the bases advanced for him. In so concluding, I do not of course express any opinion as to whether the tribunal of fact, on that evidence, would reach a conclusion or conclusions favourable to the plaintiff. My conclusion is merely that some such finding would be open.
It follows that the appeal should be upheld. The proceeding should be returned to the Equity Division. The judgment for the defendant should be set aside. The trial judge should, upon the basis that a conclusion for the plaintiff was open, proceed with the hearing. The course to be followed is, of course, to be determined by the trial judge, in conformity with the Act, the Rules and this Court's decision. If it be open to the defendant to call evidence, his Honour may see fit to allow the defendant to elect whether to do so: cf Pt34 R8(4). If the defendant elects to call evidence, then the hearing should proceed to a conclusion
in the ordinary way. If the defendant elects not to call evidence, then it is prima facie for the trial judge to make such findings and orders as, upon the evidence before him, are appropriate.
The appeal should be allowed. The judgment should be set aside. The proceeding should be returned to the Equity Division to be dealt with in accordance with this judgment. The respondents should pay the appellants' costs of the appeal and should, if entitled, have a certificate under the Suitors' Fund Act.
Sheller JA I have had the benefit of reading the judgment of Mahoney JA and agree with it and the orders therein proposed.
Counsel for the Appellants: D M J Bennett QC/D F Libling Counsel for the Respondents: D E Grieve QC/J C Kelly Solicitors for the Appellants: Gadens Ridgeway
Solicitors for the Respondents: Abadee, Dresdner and Freeman
MAILMAN and ORS
ELLISON and ORS
BRYSON J KIRBY P, MAHONEY, SHELLER JJA 21 September 1993, 25 November 1993 [1993] NSWCA 169
(1987) 162 CLR 221