State of New South Wales v Gebethner [2009] NSWCA 237

New South Wales Court of Appeal

CITATION: State of New South Wales v Gebethner [2009] NSWCA 237

HEARING DATE(S): 29/07/2009

JUDGMENT DATE: 29 July 2009

JUDGMENT OF: Giles JA at 14, 16; Macfarlan JA at 15; Handley AJA at 1

EX TEMPORE JUDGMENT DATE: 29 July 2009

1. That leave to appeal be granted, DECISION: 2. That filing of a notice of appeal and further compliance with the rules be dispensed with, 3. That the appeal be allowed with costs, and 4. That the order as to costs in the District Court be set aside and that there be substituted an order that the plaintiff pay the defendant's costs of the proceedings in the District Court on the ordinary basis.

CATCHWORDS: COSTS - discontinuance - plaintiff unable to meet damages threshold - defendant prima facie entitled to costs of action.

LEGISLATION CITED: Civil Liability Act, s 26C Suitors' Fund Act.

CASES CITED: House v The King 55 CLR 499

PARTIES: State of New South Wales - Applicant Ben Gebethner - Respondent

FILE NUMBER(S): CA 40062/2009

COUNSEL: S Norton SC and G Mahony - Applicant Respondent in Person

SOLICITORS: I V Knight Crown Solicitor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 383/06 (Newcastle)

LOWER COURT JUDICIAL OFFICER: Tonner SC, DCJ

LOWER COURT DATE OF DECISION: 10.12.08

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40062/09

GILES JA MACFARLAN JA HANDLEY AJA