EGGER v GOSFORD SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL Hope, SAMUELS and CLARKE JJA 23 June 1988 [1988] NSWCA 44 Hope, Samuels and Clarke JJA (in relation to particulars before Mr Justice Smart - see p 74 of transcript) The Court has given consideration to the question whether the issue which has been raised by the appellant that the Council was negligent in not requiring the works which had been carried out in 1974 to be removed or other remedial action to be taken was litigated in the proceedings before Smart J. We have been referred to the pleadings including the amended pleadings and the particulars that were provided by the plaintiff and by written submissions that were made by the plaintiff and the Council to Smart J. In some senses what happened was equivocal. The pleadings are not directed to the issue, the particulars in one line in a general paragraph refer to the issue but in the precise particulars of the matters relied on do not refer to them. On the other hand, the defendant Council in its written submissions to Smart J dealt with the issue both from a duty point of view and from the point of view of whether there was any evidence as to the remedial action that could have been taken. In the circumstances the Court has concluded that the best course to adopt is to proceed with the appeal without deciding that an issue was litigated at the hearing as to whether the Council was negligent in not taking action after 1974, and to deal with the matter as part of its decision in the appeal. If either party wishes to amplify the material before Smart J by oral material, it will be necessary to do so by affidavit, and any such affidavit should be filed in court on or before 4 pm Monday 27 June 1988, a copy to be provided to the other side.