ARCHIBALD v BYRON SHIRE COUNCIL [NO 2] [2004] NSWCA 349

New South Wales Court of Appeal

CITATION : ARCHIBALD v BYRON SHIRE COUNCIL [NO 2] [2004] NSWCA 349 HEARING DATE(S) : 21 August 2003 JUDGMENT DATE : 23 September 2004

JUDGMENT OF : Sheller JA; Beazley JA; DECISION : The Court makes the order 1 in Notice of Motion dated 29 July 2004.

CATCHWORDS : Indemnity certificate in respect of appeal - Suitors' Fund Act 1951 LEGISLATION CITED : Suitors' Fund Act 1951 Supreme Court Act 1970 CASES CITED : n/a PARTIES : Kevin Phillip Archibald - Appellant Byron Shire Council - Respondent FILE NUMBER(S) : CA 40773/02 COUNSEL : T Robertson - Appellant A Galasso - Respondent SOLICITORS : Walters Solicitors Wilshire Webb Solicitors

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 40109/99 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40773/02 LEC 40109/99

SHELLER JA BEAZLEY JA

Thursday, 23 September 2004 ARCHIBALD v BYRON SHIRE COUNCIL [NO 2] Judgment 1 THE COURT: Byron Shire Council was the applicant in Class 4 proceedings in the Land and Environment Court. Mr Kevin P Archibald was the respondent in those proceedings which were heard by Cowdroy J and decided in favour of the Council. On appeal to the Court of Appeal (Meagher, Sheller and Beazley JJA) by Mr Archibald the appeal was allowed with costs, the declarations and orders made by Cowdroy J on 13 December 2001 set aside and in lieu thereof an order made that the proceedings be dismissed with costs. No order was made that the unsuccessful respondent in the appeal, the Byron Shire Council, should be granted a certificate under the Suitors' Fund Act 1951. Since the decision of the Court of Appeal was handed down, Meagher JA has retired. 2 The Council has applied by notice of motion, supported by the affidavit of Cecilia Rose of 29 July 2004, that an order pursuant to s6(1) of the Suitors' Fund Act that the respondent be granted an indemnity certificate in respect of the appeal be made. The parties have consented to the two remaining members of the Bench, who heard the appeal, dealing with this motion in accordance with s45AA(1) of the Supreme Court Act 1970. 3 There is no basis upon which the grant of such a certificate can be refused. Accordingly, the Court makes the order 1 as asked in the notice of motion dated 29 July 2004.