WOLLONGONG CITY COUNCIL v NYBOER [2005] NSWCA 394

New South Wales Court of Appeal

CITATION: WOLLONGONG CITY COUNCIL v NYBOER [2005] NSWCA 394

HEARING DATE(S): 4 November 2005

JUDGMENT DATE: 4 November 2005

JUDGMENT OF: Mason P at 1; Tobias JA at 8; Campbell AJA at 9

DECISION: Summons dismissed with costs.

CATCHWORDS: LEAVE TO APPEAL – No question of law – Delay – Unjust to grant extension in the circumstances – Challenge to order under s198G Legal Profession Act – summons dismissed. (ND)

LEGISLATION CITED: Legal Profession Act

WOLLONGONG CITY COUNCIL PARTIES: Terrence John NYBOER

FILE NUMBER(S): CA 40903/04

Appellant: I Harrison SC/ M Baird COUNSEL: Respondent: S Norton SC/ S B Dixon

Appellant: McCabe Terrill SOLICITORS: Respondent: Robert Johns & Co (Bowral)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 14186/01

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40903/04

MASON P TOBIAS JA CAMPBELL AJA

Friday 4 November 2005 WOLLONGONG CITY COUNCIL v Terrence John NYBOER JUDGMENT 1 MASON P: Even were the challenge to the main judgment brought within time I would refuse leave to appeal on the substantive judgment. No question of law has been identified. The finding as to breach was well open on the facts. The prospects of overturning the findings at pp 44-6 of the judgment are insufficient to justify the grant of leave to appeal. There is no error in the reasoning or conclusion on the issue of contributory negligence. 2 The claimant's delay in challenging the substantive judgment is however fatal. A conscious decision was made not to appeal in October 2003. Thereafter the judgment was paid and disbursed in payment of expenses apart from the bulk of the plaintiff's solicitor's legal fees with a balance of $31,867 being paid to the plaintiff in November 2003. The first attempt to challenge the substantive judgment was made in late 2004. It would be quite unjust in the circumstances to extend time to permit an appeal challenging that substantive judgment. 3 The claimant's challenge to the order under s 198G of the Legal Profession Act was however brought within time. The submission was that his Honour did not identify in his reasons of 22 September 2004 the factors that engaged the section. I do not agree. This was a case in which there was an arbitration that resulted in an award in favour of the plaintiff. The defendant exercised its right to a fresh hearing in the District Court but, after a trial that lasted four days in which the defendant called no evidence on liability, the defendant failed to substantially better its position. 4 In the course of his reasons on the s 198G issue the trial judge said that the defendant exercised its right to contest the issue of liability but the fact that it exercised its right and conducted its case by testing the case presented on behalf of the plaintiff in a professional manner did not preclude the operation of s 198G. I see no error of law in this proposition. Beyond this the decision to apply s 198G in the circumstances was fact specific. To succeed in the appeal the claimant would need to establish that his Honour erred in concluding that the plaintiff incurred the costs of three days of the trial in response to actions of the defendant that were reasonably likely to unnecessarily delay the determination of the plaintiff's claim. 5 Having regard to the strong findings in the plaintiff's favour that were the outcome of a trial in which the defendant put the plaintiff to proof without calling evidence on the issue of liability, and having regard to the fact that less than $13,000 is at issue in the difference between the costs originally ordered and the costs payable with the benefit of the s 198G order, I do not consider this to be a suitable case with sufficient prospect of success to grant leave to appeal. 6 Accordingly, for those reasons I propose that the summons be dismissed with costs. 7 The motion for extension of time should also be dismissed with costs. 8 TOBIAS JA: I agree. 9 CAMPBELL AJA: I also agree.