STATE RAIL AUTHORITY OF NEW SOUTH WALES v AHMED MAALA [1991] NSWCA 260

STATE RAIL AUTHORITY OF NEW SOUTH WALES v AHMED MAALA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 4 April 1991

[1991] NSWCA 260

Handley JA This is a motion by the respondent to an appeal, one Ahmed Maala, who seeks orders enforcing an agreement that an appeal by the State Rail Authority from a decision of his Honour Judge Burke in the Compensation Court be dismissed with costs. The history of the matter is set out in an affidavit sworn by Lynne Booth, Solicitor from GH. Healey and Co., and it appears that in December 1989 the solicitor for the State Rail Authority informed the solicitors for the claimant that it would not be proceeding with the appeal. Thereafter various steps were taken between the solicitors for the parties in order to bring about a discontinuance. The correspondence is set out in Lynne Booth's affidavit and I need not refer to it in detail. In the end the result was that the solicitors for the claimant signed and returned to the solicitors for the State Rail Authority a document under which they consented to a court order that the notice of appeal be discontinued and for the appellant to pay the respondent's costs of the proceedings to be agreed or taxed. Subsequently, the State Rail Authority changed its mind and has attempted to proceed with the original appeal. This change of mind provoked the present application.

The question it seems to me is whether there was good consideration for the agreement undoubtedly entered into between the parties that the Authority's appeal be discontinued with costs to the respondent. In my opinion there is no element of compromise in this case. The Authority would have been entitled as of right to an order dismissing its appeal with costs to the respondent at any stage and it did not need any consent to obtain such orders. Undoubtedly, the agreement had the effect of suspending the incurring of further costs on behalf of the respondent to the appeal, but that alone it seems to me cannot provide consideration to the Authority for its agreement to withdraw the appeal having regard to the absence of any element of compromise.