RTA & Welling v Comerford [2000] NSWSC 163

New South Wales Supreme Court

CITATION : RTA & Welling v Comerford [2000] NSWSC 163 CURRENT JURISDICTION: Equity Division Construction List FILE NUMBER(S) : SC 55034/98; 55035/98 HEARING DATE(S) : 10.12.99, 11.2.00, 8.3.00 JUDGMENT DATE : 15 March 2000

PARTIES : 55034/98 Roads and Traffic Authority of NSW v William Kevin Comerford & 3 Ors 55035/98 Gerhardus Hendrikus Welling & Anor v William Kevin Comerford & 4 Ors JUDGMENT OF : Hunter J

M G Rudge SC & D A C Robertson for Roads & Traffic Authority of NSW COUNSEL : N A Cotman SC & M R Pesman for Messrs Comerford M L Williams SC for Messrs Welling I V Knight (State Crown Solicitor) for Roads and Traffic Authority of NSW SOLICITORS : John F Griffin for Messrs Comerford Carroll & O'Dea for Messrs Welling CATCHWORDS : Practice and procedure - adoption of referees' report - leave to adduce additional evidence - conduct of reference - court to consider aspect of negligence issue not addressed by referees - decision of court on evidence taken before referees and additional evidence. LEGISLATION CITED : Pt 72 r2 & r13 Supreme Court Rules Ghantous v Hawkesbury City Council matter number S69/1999 CASES CITED : Brodie v Singleton Shire Council matter number S44/1999 Hill v The Commissioner for Main Roads (1989) 68 LGRA 173 McDonogh v The Commonwealth (1985) 73 ALR 148 DECISION : 1. Pursuant to Pt 72 r13, I grant leave to the parties to adduce additional evidence to that taken before the referees, limited to the issue of the Authority's alleged negligence and consistently with the findings of the first report as adopted by the judgment of Einstein J of 30 March 1999 2. The parties are notified that, in deciding whether the second report should be adopted, varied or rejected, the Court will have regard to that additional evidence and the evidence taken before the referees 3. Costs reserved