Brickwood v Young and Others and the Minister for Public Works (NSW) [1904] HCA 36

74 HIGH COURT (19¢

'H.C. oF A. is a very difficult matter to say what the jury would do under t 1904. cireumstances; but before I can say that this case ought not | mean 1s- go to the jury in order to have that question determined, I mu arte f! be satisfied myself that it would be impossible for a jury 0 v reasonable men to come to the conclusion that this precautio oa under the circumstances ought not to have been taken, and, O'Connor. taken that it could not have been effectual. In other words, the case had gone to the jury, would the Court have been ent ith to set aside a verdict for the plaintiff on that issue on the grom that it was one which reasonable men could not have arrived I find it impossible to come to the conclusion that the Cour would have set aside such a verdict under those cireumstane and, that being so, it appears to me that the ease, by reason o these facts appearing in the plaintiff's own case, ought not t have been withdrawn from the jury. For that reason the ¢

ought to go down for a second trial.

Mr. Smith. I ask for costs. GrirFitH, C.J. We think the costs should abide the event ;

Solicitor for appellant, W. F. Sayer.

Solicitor for defendant, C. Lyhane. : HE M

(HIGH COURT OF AUSTRALIA j

BRICKWOOD .. . : 4 . . APPELLA AND ; YOUNG AND OTHERS, AND THE] 7 4 MINISTER FOR PUBLIC WORKS+; . RESPONDENI OF NEW SOUTH WALES | H Gis ON APPEAL FROM THE SUPREME COURT OF ee NEW SOUTH WALES. —~_— Practice—Time for setting down appeal for hearing—Delay— Appeal Rules, see, Il Sypney, 1. 12, of 22nd August, 1904—Costs. : Nov. 28. a ; ; Where an appellant has a substantial ground of appeal, and has shown Geimen 0.3, bond fides by promptly giving security and taking all other necessary st

'O'Connor JJ. the prosecution of his appeal, the mere failure to set the appeal down

2 CLR.) OF AUSTRALIA. 75