MIDDLETON v PARRAMATTA CITY COUNCIL [1998] NSWCA 141

MIDDLETON v PARRAMATTA CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P and SHEPPARD AJA 14 December 1998

[1998] NSWCA 141

Mason P. We have decided that there must be a grant of leave to appeal against the Council, but that the summons for leave to appeal against the second opponent should be dismissed with costs.

We have given some thought to whether there would be any practical way in which to save the parties the consequences of incurring further costs. Unfortunately it is just not possible to convene a third member of the Court today. I am not sure whether there would be any objection in any event to Sheppard J and myself hearing the appeal. I think it will be fairly apparent from what has happened that it is my view that there is a fairly good prospect that this trial has miscarried. In saying that, it does not follow that there was negligence, and of course, the whole question of contributory negligence is very much in the ring. But the failure of his Honour to have addressed the evidence of the three, and possibly four witnesses, who said that there was slippage means that there is a basis for a new trial.

All that we can do, therefore, is make those orders. I can only urge theparties to give thought to settling these whole proceedings, or alternatively, settling the balance of the proceedings in this Court. You are each entitled to have the appeal heard before a Court of three and that will take place sometime next year, and there will be cost consequences, but the Council may take a view that it is better to compromise that aspect of the proceedings. But that is a matter for the Council.

On the other hand the claimant may take the view it would be better to compromise the whole proceedings if some appropriate means can be devised, but I can do no more than offer that gratuitous advice.