Linsley v Muldoon [2002] NSWCA 122

New South Wales Court of Appeal

CITATION : Linsley v Muldoon [2002] NSWCA 122 FILE NUMBER(S) : CA 40363/01 HEARING DATE(S) : 1 May 2002 JUDGMENT DATE : 1 May 2002

PARTIES : Catrina LINSLEY - Appellant Jennifer Mary MULDOON - Respondent JUDGMENT OF : Heydon JA at 7; Ipp AJA at 8; Brownie AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT M238/99 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER :

COUNSEL : Mr M Neil QC with Ms N Butler - Appellant Mr B Donovan QC - Respondent SOLICITORS : Blake Dawson Waldron - Appellant Marshall & Partners - Respondent CATCHWORDS : No question of principle DECISION : Judgment set aside - matter remitted to the District Court for retrial on all issues - orders - paragraph 9.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40363/01

HEYDON JA IPP AJA BROWNIE AJA

1 May 2002 Catrina LINSLEY v Jennifer Mary MULDOON Judgment 1 BROWNIE AJA: The respondent obtained a judgment in the District Court against the appellant for damages for personal injuries sustained in a motor accident on 15 April 1996. 2 On the respondent's case she was backing out from a marked parking space adjacent to the road portion of a laneway which does not seem to be named in the evidence. On the respondent's case she had barely started to move before she stopped and while she was stationary she was struck by the appellant's vehicle which was reversing at some speed. 3 The appellant's case was starkly different. She said that she was driving along the laneway and stopped to allow another unidentified vehicle to reverse out of a parking space. The appellant stopped to enable that vehicle to make that manoeuvre and then allowed her vehicle to roll backwards a short distance to give the other motorist room to complete his or her manoeuvre. 4 To state matters very shortly for the moment because the details do not seem to me to matter the respondent's case has it that the appellant reversed into the respondent's vehicle at some speed and with some violence, whilst the appellant's case is that the respondent reversed out and struck the side of the appellant's vehicle. 5 The reasons for judgment of the learned trial judge seem to me to be quite deficient. One may infer from two sentences on p 16 of the red book that his Honour in some respects at least preferred the respondent's version. The difficulty is that his Honour gave no reasons one way or the other. He did not resolve a number of disputed questions of fact, he simply expressed what might be regarded as a conclusion without telling us why. It cannot be that he simply preferred the demeanour and therefore the evidence of the respondent to that of the appellant. He expressly rejected some parts of the respondent's evidence and in one respect he cast doubt upon her honesty. That may be putting it even a little charitably. 6 In any event it seems to me that the case has an insoluble problem at this stage. One simply cannot tell what the learned trial judge's chain of reasoning was. Profoundly regrettable as it is it seems to me that there is no alternative but to set aside the judgment below and remit the matter to the District Court for retrial on all issues. 7 HEYDON JA: I agree. 8 IPP AJA: I agree. 9 The Court will make these orders.

(1) The orders made by Herron DCJ be set aside. (2) That an order be made for a retrial on all issues. (3) That the costs of the first trial are to be in the discretion of the District Court Judge hearing the second trial. (4) No order as to the costs of the appeal. (5) Liberty to apply in relation to the restitution of the judgment moneys paid to the plaintiff. **********

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