New South Wales Court of Appeal CITATION : HICKEY v DAVISTOWN RSL CLUB LTD [2003] NSWCA 110 HEARING DATE(S) : 10 April 2003 JUDGMENT DATE : 10 April 2003 JUDGMENT OF : Mason P at 1, 5; Meagher JA at 7; Santow JA at 8 DECISION : Appeal dismissed with costs. CATCHWORDS : Appeal - negligence alleged - primary facts as found by trial judge not in issue - ground of appeal asserting lack of sufficient reasons withdrawn - two friends drinking and playing poker machine at RSL Club for several hours - jackpot! - verbal argument about sharing winnings - closing time - doorman escorted them from premises - each man lived within walking distance of Club - appellant's friend let argument drop and started walking away - appellant ran after him, swung a punch and missed - appellant lost balance and fell to ground injuring himself - Club employees had no reason to believe verbal argument might escalate - whether Club was negligent - appeal continued after and despite South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 - hopeless appeal. (ND) PARTIES : Ross Patrick HICKEY v DAVISTOWN RSL CLUB LTD FILE NUMBER(S) : CA 40528/02 COUNSEL : Appellant: J Rowe Respondent: D Campbell SC / T Moisidis SOLICITORS : Appellant: Bayside Solicitors Respondent: Ebsworth & Ebsworth LOWER COURT District Court JURISDICTION : LOWER COURT DC 6659/00 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40528/02 DC 6659/00 MASON P MEAGHER JA SANTOW JA Thursday 10 April 2003 Ross Patrick HICKEY v DAVIDSTOWN RSL CLUB LTD JUDGMENT 1 MASON P for the Court: This appeal is hopeless. It is dismissed for the reasons stated by the trial judge. 2 Mr Rowe why shouldn't the Court in the circumstances of this case consider making a wasted costs order against you and/or your solicitor under Part 52A, rule 43 and rule 43A? 3 [Discussion ensued] 4 Having dismissed the appeal on the basis that it was in our view hopeless, the question was raised as to whether a wasted costs order should be visited upon the solicitor and/or barrister representing the appellant. Counsel indicated that he sought an adjournment in order to have a reasonable opportunity for him and his solicitor to be heard in accordance with Part 54A rule 43 and rule 43A. 5 Senior counsel for the respondent indicated that his client sought no order for costs other than the usual order. In all of the circumstances and rather than spend further time and money in this matter the Court will accede to the application of the respondent. The appeal is dismissed with costs. 6 MEAGHER JA: I agree. 7 SANTOW JA: I agree. ********** Last Modified: 05/20/2003 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.