TELFER v. BERKELEY CHALLENGE PTY. LIMITED (NO. 2) [2000] NSWCA 181

TELFER v. BERKELEY CHALLENGE PTY. LIMITED (NO. 2) [2000] NSWCA 181

The Respondent had made no submissions on contributory negligence in its written or oral submissions on the appeal, despite the Appellant seeking judgment with damages to be assessed. Powell JA found it difficult to accept that this omission was an oversight and held that, even if it were, the Court should not exercise its discretion to allow the Respondent to change tack at this stage of the appeal proceedings. The motion was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
21 July 2000
Procedural Posture
Notice of Motion in Court of Appeal After Appeal in Negligence/personal Injury Proceedings / Written Submissions on the Respondent's Motion Seeking Leave to Argue Contributory Negligence or Variation of Orders Before Assessment of Damages in the District Court
Outcome
Application dismissed
Legal Topics
['judgments and Orders' 'power to Vacate or Vary Orders' 'slip Rule' 'contributory Negligence' 'remittal for Assessment of Damages']
['civil Procedure' 'appellate Procedure' 'negligence' 'personal Injury'] ['judgments and Orders' 'power to Vacate or Vary Orders' 'slip Rule' 'contributory Negligence' 'remittal for Assessment of Damages']

Case Brief

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Procedural Posture

Notice of Motion in Court of Appeal After Appeal in Negligence/personal Injury Proceedings / Written Submissions on the Respondent's Motion Seeking Leave to Argue Contributory Negligence or Variation of Orders Before Assessment of Damages in the District Court

Legal Issues

  1. 1 ["Whether the Court should give the Respondent leave to make submissions in the District Court on the Appellant's contributory negligence when damages were assessed." 'Whether orders 3 and 4 of the judgment of 8 March 2000 should be discharged or varied to order a new trial generally or to have the Court of Appeal determine contributory negligence.' "Whether the slip rule or the Court's inherent power justified varying or vacating the orders after no contributory negligence submissions had been made on the appeal."]

Ratio Decidendi

The Respondent had made no submissions on contributory negligence in its written or oral submissions on the appeal, despite the Appellant seeking judgment with damages to be assessed. Powell JA found it difficult to accept that this omission was an oversight and held that, even if it were, the Court should not exercise its discretion to allow the Respondent to change tack at this stage of the appeal proceedings. The motion was therefore dismissed with costs.

Court Disposition

Application dismissed

Orders

  • ['Motion dismissed with costs.']