Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 Hearing dates: 13 May 2013 Decision date: 13 May 2013 Before: Basten JA at [1]; Hoeben JA at [39]; Ward JA at [40] Decision: Interlocutory orders: (1) Upon the agreement of the parties as to indemnity as to the respondent's costs, grant the appellant leave to proceed in relation to this appeal pursuant to s 471B of the Corporations Act 2001 (Cth), such leave to be qualified by the right of the liquidator to move the Court for any variation which he may think fit upon giving consideration to the nature of the proceedings. (2) The appellant is now Action Paintball Games Pty Ltd (In liquidation) Final orders: (1) Allow the appeal and set aside orders 1-3 made in the District Court on 15 December 2011. (2) In place of those orders: (a) give judgment for the defendant; (b) order the plaintiff to pay the defendant's costs of the trial. (3) Order the respondent to pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - s 5M Civil Liability Act 2002 (NSW) - whether appellant gave "risk warning" regarding recreational activity - where warning as to general risks given - where no specific warning given as to risk which materialised - where warning as to general kind of risk adequate - impermissibility of hindsight reasoning