Dyldam Developments Pty Limited v Jones

[2008] NSWCA 56

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Challenge to findings of fact
3. › Sufficiency of reasons
4. › Whether reasons disclosed errors
5. › Whether primary judge required to resolve anomalies in evidence
1. Evidence
2. › Discretion to exclude evidence
3. › Section 135 Evidence Act 1995 (NSW)
4. › Unfair prejudice
5. › Undue waste of time
6. › Document produced at trial which should have been produced on subpoena
7. › Whether danger that evidence might be unfairly prejudicial or cause undue waste of time substantially outweighed probative value
1. Evidence
2. › Discretion to exclude evidence
3. › Section 135 Evidence Act 1995 (NSW)
4. › Scope of unfair prejudice
5. › Whether procedural disadvantage from inability to test evidence falls within s 135(a)
6. › Whether concept of unfair prejudice limited to misuse by tribunal of fact
1. Damages
2. › Personal injury
3. › Economic loss
4. › Pre-accident earnings
5. › Tax returns showing low income
6. › Whether reasons required for disregarding record of pre-accident earnings
7. › Assessment of wage loss

Quick Take

Section 135 of the Evidence Act 1995 (NSW) permits exclusion of evidence where a party is procedurally disadvantaged by inability to test the evidence, including where a document that should have been produced on subpoena is tendered at trial without prior disclosure. The concept of 'unfair prejudice' in s 135(a) extends beyond misuse of evidence by the tribunal of fact to encompass procedural unfairness. A trial judge assessing economic loss must give reasons for disregarding a plaintiff's pre-accident earnings as shown in tax returns and wage records; failure to do so is an error warranting appellate intervention.