New South Wales Court of Appeal CITATION : RTA v Cremona and Anor [2001] NSWCA 85 FILE NUMBER(S) : CA 40652/00 HEARING DATE(S) : 26/03/01 JUDGMENT DATE : 9 April 2001 Roads and Traffic Authority PARTIES : v Cremona and Anor JUDGMENT OF : Meagher JA at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 75/94 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER : Appellant: B J Gross QC / A Porthouse COUNSEL : 1st Respondent: M A Jones 2nd Respondent: L Morris QC Appellant: I V Knight Crown Solicitor SOLICITORS : 1st Respondent: Corrs Chambers Westgarth 2nd Respondent: Abbott Tout CATCHWORDS : Notice of Motion - second respondent seeking strike out of appeal as against him - where second respondent not a party at trial - where no finding of liability or quantum against second respondent - application granted. LEGISLATION CITED : Occupational Health & Safety Act (1983) Damages (Infants and Persons of Unsound Mind) Act (1929) CASES CITED: Insurance Exchange v Dooley (2000) NSW CA 159 DECISION : RTA to pay costs of motion. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40652/00 MEAGHER JA Monday, 9 April 2000 ROADS AND TRAFFIC AUTHORITY v CREMONA AND ANOR JUDGMENT 1 MEAGHER JA: This is a motion by the second respondent to the appeal, Mr Jose Antonio Capelo, for the appeal to be struck out as against him. Mr L M Morris QC appeared for the claimant; Mr B Gross QC appeared for the opponent. The situation with which it deals is a curious one. 2 An accident took place on 28 May 1993 on the Bulli road. A motor car driven by a Dr Cremona drove into the rear of a truck whose driver was the claimant, Mr Capelo. Dr Cremona was killed. 3 His widow Minna Maarit Cremona then filed a statement of claim on 27 October 1994 naming Mr Capelo as first defendant and the opponent, Roads and Traffic Authority (RTA) as second defendant. 4 On 1 March 1996 proceedings commenced in the Industrial Court of New South Wales before Fisher CJ, where the RTA was charged with, and pleaded guilty to, offences under the Occupational Health and Safety Act (1983), for its conduct in repairing the road shortly before the accident in question. Based on that judgment, the plaintiff sought and obtained a summary judgment from Dowd J against the RTA in the present case. An application for leave to appeal against that judgment was refused by this Court. 5 In an application before Dowd J, his Honour on 16 October 1998 made the following orders: 1. The plaintiff discontinue against the first defendant by consent. 2. That a separate trial of the action against the second defendant by the plaintiff occur. 3. That there be a separate trial of the cross claim between the cross claimant and the cross defendant. 4. That the action against the second defendant for assessment of damages be separately tried. 5. That the second defendant pay the plaintiff an interim payment of $800,000. 6. That the second defendant pay the plaintiff's costs of the application for interim payment and the costs of and incidental to the bias application. Only the first four orders seem to me to be of present relevance. The plaintiff did discontinue. Nobody has appealed against his Honour's order. 6 Thereafter, in a trial between Mrs Cremona and RTA, Mrs Cremona recovered a verdict for $5,091,601 plus costs. 7 The RTA have appealed, and joined as respondents to that appeal not only Mrs Cremona but also Mr. Capelo. 8 (There have been other procedural manoeuvrings between the parties, but they are of no relevance). 9 I should have thought that Mr Morris was entitled to the order he seeks. There has been no trial of any issue between Mr Capelo and Mrs Cremona. At the moment he is not obliged to pay her one cent for any reason. He is unaffected either as to quantum or as to liability. 10 His turn for trial has yet to come. 11 As from the moment the proceedings against him were discontinued he has not been a party to the litigation. It is difficult to see why he has been joined as if he were a party. 12 Mr Gross conceded that Mr Capelo cannot be treated as far as liability is concerned as adversely affected by the verdict which Mrs Cremona obtained against the RTA. If, after the appeal and any subsequent proceedings between Mrs Cremona and the RTA have been disposed of, the RTA wishes to bring contribution proceedings against Mr Capelo, a nice question will arise as to whether there is a res judicata as to quantum binding on Mr Capelo. I do not think there is, but Mr Gross submits that a decision of this Court, Insurance Exchange v Dooley (2000) NSW CA 159, is to the contrary. Whether it is or not, Mr Capelo's participation in the Court of Appeal proceedings will not affect the issue. 13 I order, therefore, that Mr Capelo be removed as second respondent to the appeal. 14 The RTA is to pay the costs of this motion. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.