Brown & Anor v Churchill

(2006) 31 WAR 246; [2006] WASCA 17

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › New trial
3. › Improper rejection of evidence
4. › Whether substantial wrong or miscarriage of justice occasioned
5. › Whether excluded evidence could have affected result
6. › Rules of the Supreme Court 1971 (WA), O 63 r 12(2)
1. Evidence
2. › Admissibility
3. › Pre-trial conference schedules
4. › Whether documents prepared for pre-trial conference are privileged
5. › Whether without-prejudice privilege attaches to schedules filed under court rules
6. › District Court Rules 1996 (WA), O 5 r 1, O 5 r 6
1. Practice and Procedure
2. › Procedural fairness
3. › Trial judge departing from position agreed between parties without notice
4. › Whether trial judge obliged to foreshadow ruling excluding admitted evidence
1. Torts
2. › Damages
3. › Personal injuries
4. › Multiple accidents
5. › Apportionment of loss between accidents
6. › Interest on past loss of earning capacity
7. › Calculation of interest where loss incurred over time

Quick Take

A new trial will not be ordered for improper rejection of evidence unless the appellate court is satisfied that a substantial wrong or miscarriage of justice has occurred. The test, informed by Weiss v The Queen, requires an objective assessment of whether the excluded evidence would or should have had significance in determining the outcome. Pre-trial conference schedules filed under court rules setting out particulars of a claim are not privileged 'without prejudice' communications and are admissible at trial. A trial judge who proposes to exclude evidence that was admitted by agreement of the parties must foreshadow that ruling and allow submissions.