Duong v Tran

[2010] NSWCA 280

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Procedural fairness
3. › Apprehended bias
4. › Trial judge expressing surprise at experienced counsel's submission
5. › Whether fair-minded lay observer might reasonably apprehend lack of impartiality
1. Practice and Procedure
2. › Adjournment
3. › Personal injury
4. › Infant plaintiff
5. › Adjournment sought to allow future testing of brain function
6. › Whether refusal of adjournment involved House v The King error
7. › Whether evidence misapprehended or given inappropriate weight
8. › Whether acted on wrong legal principle
9. › Whether so unreasonable as to indicate error
1. Practice and Procedure
2. › Procedural fairness
3. › Courtroom observations of party
4. › Judge's observations of infant plaintiff's demeanour relied on in judgment
5. › Whether observations raised during addresses gave adequate opportunity to respond
1. Damages
2. › Personal injury
3. › Negligence
4. › Whether brain damage established
5. › Evaluation of conflicting medical evidence
6. › Weight of medical assessor reports
7. › No error in fact-finding

Quick Take

A judge's courtroom observations of a party's demeanour may be relied upon in judgment where the observations were volunteered during addresses and the opposing party's counsel was invited to take them into account, giving the affected party a reasonable opportunity to respond. The requirement to disclose observations is flexible and based on commonsense, and the availability of re-opening to lead evidence may satisfy procedural fairness requirements. The weight given to conflicting medical evidence in the exercise of a discretion is seldom House v The King error.