BOOKER v STATE RAIL AUTHORITY OF NEW SOUTH WALES [1993] NSWCA 29

BOOKER v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 17 May 1993

[1993] NSWCA 29

Mahoney JA. This matter comes before the court in the following way. The proceeding derives from an accident which took place when trains collided in the New South Wales railway system a considerable time ago. The proceeding came on for hearing and there were issues of principle which it was thought were apt to apply, not merely to the instant case, but to other cases arising out of the same accident.

The matter was referred to the Court of Appeal and the matter was argued before the Court consisting of Mr Justice Priestley, Mr Justice Clarke and myself. The matter was heard on 15 May 1992. The Court delivered judgment on 2 June 1992. In that judgment, the Court indicated that there were issues of fact that required to be determined.

As the result of the Court's indication, the matter was referred to the Common Law Division to determine the issues of fact. The issues of fact as finally formulated came before Mr Justice Studdert. His Honour on 6 May 1993 gave judgmentupon the issues of fact. Counsel have informed the Court that there will be no appeal from the findings which his Honour has made.

It is agreed that as a result of those findings the matter comes back to this Court. Formally the procedure to be followed is that this Court will on the basis of the findings of fact made by Mr Justice Studdert enter upon the final determination of the appeal which is still pending before it. That is the order which ordinarily would be made.

There is a possible complication. Mr Justice Priestley, one of the members of the Court which gave the interim judgment on 2 June 1992, may not be available for some months. The result of that would be that the hearing of the appeal would be delayed for a significant time. It is obvious and I think the parties also accept that this appeal and consequently the matters depending upon it should be dealt with with all proper expedition.