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. Sheppard AJA. I just want to say that I thoroughly agree with what the President has said. It seems to me that this matter involves a verdict of $20,000 and two sets of indemnity costs. The Trial Judge mentioned this, I think at the end of the first day, but it really does cry out for some sensible resolution of the matter, and that means compromise and give and take on both sides. I do not want to say anymore. Mason P. WOODS: You Honour may I be heard in relation to indemnity costs? MASON P: Yes. WOODS: The second respondent seeks an order for the cost of application for leave to be made on an indemnity basis. That order follows on from the order made by the Trial Judge, based upon the service of an offer of compromise in accordance with the Court rules. MASON P: Was any fresh offer made between trial and this present application? WOODS: My understanding is that there were discussions about the quantification of costs. 2 UNREPORTED JUDGMENTS Mason P: You would just be relying upon the pre-trial offer? WOODS: Yes your Honour. Mason P: Is there really any difference between ordinary costs and indemnity costs in relation to an opponent's brief in a leave application? 5 WOODS: In today's environment probably not. That's a matter beyond my competency your Honour. Mason P: We will just leave the ordinary order for costs Mr Wood. Is there anything further gentlemen? HATZISTERGOS: The Council's not prepared to have the matter dealt with 10 today. Mason P: Unfortunately we aren't in a position to offer a third Judge today. Orders accordingly.