Court Of Appeal Procedure

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.

Background/Facts

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...