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. I have therefore enquired of the parties whether if Mr Justice Priestley is not available the parties would agree to the appeal being dealt with by a reconstituted Court. That Court would presumably be Mr Justice Clarke, myself and another judge of the Court of Appeal. That may I think constitute formally a rehearing of the appeal. But the parties are in agreement that the matter may proceed by the substitution of another judge for Mr Justice Priestley, if that were necessary, and that the appeal will then proceed upon the basis set forth in the Court's judgment of 2 June1992 and by reference to the findings of fact which have been made by Mr Justice Studdert on 6 May 1993. The parties are to be commended upon their agreement to this course. It would obviously be inconvenient for further time to be wasted by a rehearing of the matter or formalities being gone through again merely because one of the judges may not be available to finalise the hearing. 2 UNREPORTED JUDGMENTS The order that I propose to make therefore is that in the circumstances, having regard to the judgment of Mr Justice Studdert, the hearing of the appeal is to be relisted upon a date to be fixed by the Registrar. The parties are agreed that the Court on the hearing or rehearing of the appeal, whichever that may be, may consist of a court comprising Mr Justice Clarke, myself and another Judge of the Court of Appeal. It is appropriate that the costs of today be costs in the appeal. Gentlemen, you should consult with the Registrar as to the date. Hopefully the date to be obtained will be reasonably early. As I have said, I would hope in July some time, but that is a matter you should take up with the Registrar. If you take it up with him forthwith you will be more likely to get a date suitable to you than if you don't. Orders accordingly.