Bootle v Barclay [2013] NSWCA 142

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bootle v Barclay [2013] NSWCA 142 Hearing dates: 9, 10 May 2013 Decision date: 31 May 2013 Before: MEAGHER JA at [1]; SACKVILLE AJA at [2]; BALL J at [76] Decision: In CA No 2012/208370 (the Bootles' application for leave to appeal): 1. Grant leave to appeal on grounds 1-8 in the draft notice of appeal appearing in the red book. 2. Refuse leave to appeal on grounds 9-11. 3. Direct the applicants within seven days to file a notice of appeal in the form of the draft notice of appeal (omitting grounds 9-11 and proposed orders 3, 4 and 5). 4. Allow the appeal. 5. Set aside the verdict for the first and second respondents (the Barclays) against the appellants (the Bootles) entered by the primary Judge on 28 June 2012. 6. Set aside Order 2 made by the primary Judge on 28 June 2012 insofar as Order 2 requires the appellants to pay the costs of the first and second respondents. 7. In lieu of Order 2 referred to in Order 6 above, order the first and second respondents to pay the appellants' costs of the proceedings in the District Court. 8. Order the first and second respondents to pay the appellants' costs of the appeal. 9. The first and second respondents, if otherwise qualified, to have a certificate under the Suitors' Fund Act 1951. In CA No 2012/223392 (the leave application by MVAS and Mr Shapley): 1. Grant leave to appeal. 2. Direct the applicants within seven days to file a notice of appeal in the form of the draft notice of appeal in the red book. 3. Allow the appeal in part. 4. Set aside the verdict for the first and second respondents against the second appellant (Mr Shapley) entered by the primary Judge on 28 June 2012. 5. Leave undisturbed the verdict for the first and second respondents against the first appellant (MVAS). 6. Set aside Order 2 made by the primary Judge on 28 June 2012 insofar as Order 2 requires the second appellant to pay the costs of the first and second respondents. 7. Leave undisturbed Order 2 insofar as it requires the first appellant to pay the costs of the first and second respondents. 8. Order that the first and second respondents pay the second appellant's costs of the proceedings in the District Court. 9. The first and second respondents pay Mr Shapley's costs of the appeal assessed at 50 per cent of the costs of Mr Shapley and MVAS of the appeal. 10. The first and second respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. [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: NEGLIGENCE - damage to crops as the result of aerial spraying of herbicide on adjoining land - drift of spray of at least 1700 metres - weather conditions said to be "ideal" - whether findings of negligence against the lessee and occupier of the land, the pilot and the provider of the aircraft should stand - relevance of hazardous nature of the spraying Legislation Cited: Damage by Aircraft Act 1999 (Cth) Supreme Court Act 1970 Workers Compensation Act 1987 Cases Cited: Bonic v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315 R v The Judges of the Federal Court; ex parte Western Australian National Football League [1979] HCA 6; 143 CLR 190 Stephan v Pacesetter Cleaning Services Pty Ltd [1995] NSWCA 455; 12 NSWCCR 19 Category: Principal judgment Parties: 2012/208370 Richard Thomas Bootle (First Appellant) Bootle Bros Management Pty Ltd (Second Appellant) Stuart Henry Barclay (First Respondent) Susan Rose Barclay (Second Respondent) Macquarie Valley Ag Services Pty Ltd t/as Macquarie Valley Agricultural Services (Third Respondent) Murray Shapley (Fourth Respondent)