Australia: Court Of Appeal Procedure

Last Updated: 19 August 2008
Article by Ian Jones

Kendirjian v Ayoub [2008] NSWCA 194

Beazley and McColl JA

In Brief

  • A practitioner has a positive statutory duty to assist the Court of Appeal in providing adequate written submissions prior to the hearing of the matter;
  • In the event a practitioner is inadequately prepared, the Court may exercise its discretion to order that the practitioner(s), personally bear the wasted costs, pursuant to s 99 of the Civil Procedure Act 2005, and
  • It is not material whether surveillance relied upon in proceedings is infrequent or of short duration. The significance of surveillance is whether it depicts a conflict between what is observed during surveillance and the evidence given by the Appellant. In circumstances where such conflict arises, there must be significant doubt as to the Appellant's credit.


The New South Wales Court of Appeal handed down its decision in Kendirjan v Ayoub on 14 August 2008.

The Appellant, was injured in a motor vehicle accident on 21 November 1999. Liability was admitted by the Respondent.

The Appellant argued at trial that as a result of the motor vehicle accident, he was severely disabled both physically and psychologically. He also alleged that he was unable to continue his pre-accident business as an auto electrician.

The Respondent argued that the Appellant had exaggerated his medical condition, and if in fact he was as severely disabled as alleged, it was causally related to an operation performed by an orthopaedic surgeon outside of competent professional practice, rather than to the motor vehicle accident.

During the hearing, the Respondent tendered video surveillance of the Appellant taken in 2000, 2002 and 2004. The video evidence taken in 2000, showed the Appellant working as an auto electrician with no apparent disability. In evidence, the Appellant alleged that at approximately the time the video was taken he had to give away his business due to the pain he was experiencing.

Additionally, during the trial, the Appellant gave his evidence while he alternatively sat and stood in the witness box, and upon being questioned as to this behaviour, gave evidence that his injuries necessitated it.

Trial Judge's Decision

Delaney DCJ found that the Appellant was suffering from soft tissue injuries to his neck and low back and was also suffering from a psychological condition as a result of his physical disabilities.

The trial judge also accepted that the video evidence adversely impacted upon the reliability of the Appellant's evidence, namely that it was inconsistent with the Appellant's allegation that, at the time the surveillance was taken, he was significantly physically handicapped.

At first instance, Delaney DCJ assessed the Appellant's damages at $308,432.75

Appellant's conduct of the Court of Appeal proceedings.

McColl JA (with whom Beazley JA agreed), noted at paragraph 40, that the Notice of Appeal did not have a "happy history".

The Appellant filed a Notice of Appeal on 25 January 2007, alleging that the trial judge erred in his assessment of general damages, economic loss and future treatment expenses. It was also alleged the trial judge erred in failing to conclude the Appellant had satisfied the requirements of s128 of the Motor Accidents Compensation Act (1999), disqualifying the Appellant from recovering damages for gratuitous domestic assistance. However, the Appellant's written submissions in support of the Notice of Appeal generally argued that the trial judge had failed to provide any, or any adequate, reasons for his conclusions.

The Appellant then filed an Amended Notice of Appeal on 11 April 2007, which attacked each of the heads of damages referred to in the Notice of Appeal on the basis of alleged inadequacy of reasons.

During the early stages of hearing of the Appeal, it was discovered that only the original Notice of Appeal was contained in the Red Book, and not the Amended Notice of Appeal. This caused difficulties for both the Court and the respondent as the Respondent had prepared written submissions in response to the Amended Notice of Appeal.

The Appellant sought leave to file a Further Amended Notice of Appeal, consolidating the two earlier Notices. Leave was granted as the Court of Appeal could not identify any prejudice to the Respondent.

Despite the Notices of Appeal being consolidated, the Appellant relied on his written submissions dated 11 April 2007, which generally alleged that the trial judge did not adequately analyse the Appellant's evidence nor reveal the reasons for his conclusion. The one passable exception to the generality of the written submissions was the contention that the award for non-economic loss, ought to have been "significantly higher".

McColl JA, was highly critical of the Appellant's inadequate written submissions, and noted at paragraph 47:

"47. In short, the Appellant's written submissions afforded the Court no assistance on either version of the Notice of Appeal on foot at the time the appeal hearing commenced. There was no analysis of the approximately 680 pages in the Blue Books or the 250 pages of transcript in the Black Book, nor did the Appellant file a Schedule of Damages: cf Pt 51rr 40 and 46, Supreme Court Rules 1970 which relevantly applied to the Appeal. Nor, as the Respondent's written submissions point out, did the Appellant's submissions identify any relevant evidence the primary judge had failed to refer to, identify any material findings of fact the primary judge had failed to set out in respect of His Honour's findings of fact and ultimate conclusions: cf Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 443) per Meagher JA."

As the hearing proceeded, the Court of Appeal voiced its concerns to the Appellant's counsel about the inadequacy of the written submissions and the inconsistencies in the oral argument. At the conclusion of the hearing, the Court ordered the Appellant's legal representatives to file and serve submissions detailing the evidence that the trial judge failed to consider and what the outcome ought to have been if such evidence was considered.

Further submissions were provided by different counsel engaged by the Appellant which, on instructions from the Appellant's solicitors, only addressed the issue of an erroneous assessment of damages. The Respondent pointed out to the Court that the submissions did not address all of the issues as requested by the Court.

On 20 November 2007, the Appellant filed a Notice of Motion seeking leave to file further supplementary submissions and leave was granted by the Court.

The further supplementary submissions contended that a substantial miscarriage of justice had occurred arising from the trial judge's characterisation of the Appellant's behaviour as "bizarre", as well as his Honour's heavy reliance upon only part of the video surveillance.

The Court of Appeal's decision

McColl JA, at paragraph 160, criticised the Appellant's written submissions stating that they "nit-picked", rather than looked at the substance of the trial judge's reasons.

The Court of Appeal found that not only did the trial judge sufficiently refer to the medical evidence favourable to the Appellant's case, he adequately identified the basis on which he rejected it.

In relation to the conclusions the trial judge made from the video surveillance, her Honour stated at paragraph 119:

"119. In my view the adverse conclusions his Honour drew were well open to him...It is facile to say that the video evidence amounts to only 3 or so hours of observations over six or so years. The significance of what they depict lies in the conflict between the image they present and the image the Appellant sought to portray in his evidence of almost total disability. Significantly, as the primary judge concluded, they show the Appellant apparently working normally at a time he sought to persuade the primary judge that he had to close his business. That alone would cast significant doubt on a plaintiff's credibility".

The Appellant argued that, inter alia, the trial judge failed to consider that on crossexamination the Appellant did not make any significant concessions. However, her Honour reasoned at paragraph 165:

"165. Staunch adherence in the witness box to subjective evidence of disabilities belied by objective video evidence is just as, if not more, damning of a witness's credibility, than an appropriately made concession."

In addition, her Honour noted the lack of objective medical evidence going to the Appellant's disabilities. Rather, most of the medical opinions were largely, if not entirely, based on the Appellant's complaints.

Adequacy of Reasons

McColl JA noted that there was no absolute rule as to the requirement to give reasons, confirming the principles as set out in Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373; at paragraph 170.

However, her Honour confirmed that the trial judge had a positive duty to expose the reasons for resolving points that were in issue between the parties (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

The Court held that the trial judge satisfied the rule Flannery, and analysed and referred to the medical evidence, exposing his reasons for accepting or rejecting, as the case may be, the parties' contentions.

Section 61 certificates

The Court of Appeal considered and reaffirmed the decision of Brown v Lewis [2006] NSWCA 87.

It was noted that the trial judge had fallen into error when assessing the Appellant's economic loss. The trial judge had treated the s 61 certificates as conclusive on the issue of the Appellant's earning capacity. At paragraph 189, McColl JA confirmed that the effect of a s 61(2)(a) certificate is to determine whether the degree of permanent impairment exceeds the threshold and did not have a conclusive effect on the issue of damages for economic loss.

However, this error of the trial judge was not in issue on appeal as ultimately his Honour's error did not result in an inadequate assessment of damages for economic loss.


A Court has the discretionary power pursuant to s 99(1) of the Civil Procedure Act (2005) to order that a legal practitioner bear costs which have been incurred by the serious neglect, incompetence or misconduct of a legal practitioner or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

During the Court of Appeal proceedings, the Appellant's original counsel conceded that the legal representatives would bear the burden of those costs that were wasted.

In considering the discretion, the Court may look to ss 56(3) and (4) of the Civil Procedure Act, which places a positive duty on practitioners to assist the court in achieving a just, quick and cheap resolution: s 56(5).

McColl JA concluded that the Appellant's legal practitioners' failure to provide adequate written submissions prior to the hearing caused both the Appellant and the Respondent to have to comply with further written submissions.

Her Honour reasoned at paragraph 212:

"212. In my view the costs of any more than one set of written submissions were wasted costs incurred by the serious neglect of...(the Appellant's solicitors)...The costs of the Motion were also wasted costs occasioned by the Appellant's solicitors' serious incompetence..."

The Court of Appeal dismissed the Appeal and made orders that the parties file further submissions as to who should bear the burden of wasted costs, and whether such costs should be on an indemnity basis.


This case is a warning to all parties of the importance in preparation for hearing, not only in the Court of Appeal but all jurisdictions. It highlights the positive duty legal practitioners have to assist the Court in their written submissions and the necessity to comply with statutory requirements.

This case also serves to highlight that the Court of Appeal will exercise the discretionary power in s 99 of the Civil Procedure Act to deal with legal practitioners who fail to comply with Court orders. The reasoning of McColl JA is a useful summary of what standard of preparation is required by parties' legal representatives when appearing before the Court of Appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions