THOMAS v THE AUSTRALIAN POSTAL COMMISSION and ANOR [1993] NSWCA 268

THOMAS v AUSTRALIAN POSTAL COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA

16 February, 12 March, 27 April 1993, 27 July 1993

[1993] NSWCA 268

MOTION — DISMISSAL FOR LACK OF PROSECUTION — DELAY ENORMOUS- NO EXPLANATION — PREJUDICE TO CLAIMANT.

Clarke JA The opponent received injuries when involved in an accident on 11 March 1976. He commenced proceedings in the Supreme Court in 1977 claiming damages against the claimant and the Botany Municipal Council ('the Council'). He claimed that he had been driving a five tonne truck in the course of a mail run in his employment as a truck driver with the claimant when the vehicle hit a trench running across O' Riordan Street, Mascot, the maintenance of which was the responsibility of the Council. He also said, and his evidence to this effect was not contradicted, that the truck which had been supplied by the claimant was not fitted with a seat belt of any sort. In the action he asserted that the claimant was negligent in failing to ensure that the truck was fitted with a seat belt and the Council was negligent in its maintenance of the road surface.

The trial commenced before Miles J and a jury of four at Sydney on 13 March 1984 and continued until the jury returned its verdict on 20 March. During the course of the trial his Honour directed a verdict for the Council and at the end of the trial the jury returned a verdict in favour of the claimant.

The opponent appealed and service of his notice of appeal was effected on the solicitor for the claimant on 21 May 1984. In that notice of appeal the opponent challenged his Honour's decision directing a verdict for the Council on the ground that his Honour erred in holding that there was no evidence that the Council had been guilty of misfeasance in relation to the trench across O'Riordan Street. Grounds 4 to 9, however, related to the verdict for the claimant. In grounds 4 to 6 the opponent asserted that his Honour misdirected the jury and grounds 7 to 9 asserted, in different ways, that the verdict of the jury was unreasonable or perverse.