Agritis v Canterbury Muncipal Council

[1999] NSWCA 148

CITATION:	Agritis v Canterbury Muncipal Council [1999] NSWCA 148
FILE NUMBER(S):	CA 40567/98
HEARING DATE(S):	17 May 1999
JUDGMENT DATE:	17 May 1999
PARTIES :	DESPINA AGRITIS v CANTERBURY MUNICIPAL COUNCIL & ANOR
JUDGMENT OF:	Handley JA at 1; Sheller JA at 13; Fitzgerald JA at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1749/97
LOWER COURT JUDICIAL OFFICER:	Johnstone ADCJ

COUNSEL:	M J Finnane QC/J O Anderson (Appellant) P R Garling SC/W M Fitzsimmons (Respondent)
SOLICITORS:	Martin Bell & Co (Appellant) Hunt and Hunt (Respondent)
CATCHWORDS:	NEGLIGENCE - PERSONAL INJURY - APPLICATION FOR LEAVE TO APPEAL - WHETHER TRIAL JUDGE'S FINDINGS OF FACT COULD BE DISTURBED
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40567/98
1749/97

HANDLEY JA
SHELLER JA
FITZGERALD JA

Monday 17 May 1999

DESPINA AGRITIS v CANTERBURY MUNICIPAL COUNCIL

JUDGMENT

HANDLEY JA: This is an application for leave to appeal brought on behalf of a plaintiff who slipped and fell on a grassy slope at Campbell Oval, Canterbury Park, on 10 April 1994.

Mr Finnane has properly conceded that unless the claimant is able to disturb the Judge's findings of fact, leave should be refused. He has said everything that could possibly be said in support of the challenge to those findings but the Court is satisfied that there is no proper basis on which it could intervene and disturb those findings. In these circumstances both the summons for leave to appeal and the incompetent appeal should be dismissed with costs.
GARLING: If the Court pleases. Could I make an application for costs on an indemnity basis, your Honours. On 9 March 1999 in these proceedings my clients made an offer to compromise the claim, on the basis of a verdict in my client's favour and each party pay their own costs. That was not accepted.
HANDLEY JA: So you gave up costs of the trial and the costs of the appeal so far incurred?
GARLING: Yes.
HANDLEY JA: Yes, Mr Finnane?
GARLING: As of 9 March, your Honour.
HANDLEY JA: As at 9 March, yes.
FITZGERALD JA: The indemnity costs application only relates to the period after that, is that the position?
GARLING: Yes, your Honour.

FINNANE: I can't oppose that, your Honour. But it would only relate to the period after that.
HANDLEY JA: Yes, that is so. Mr Garling has applied to vary the Court's order for costs. A notice of compromise was served on 9 March, in which the defendants offered to compromise on the basis that the verdict for the defendants should stand but that there should be no order as to costs. This offer on behalf of the defendants involved the giving up of the costs of the trial and the costs incurred to that date in the appeal and the summons for leave to appeal. Mr Finnane properly accepts that he cannot resist this order, and that concession was inevitable.
I am asked whether the costs of the appeal were to be given up.
SHELLER JA: No, the costs of the trial. Perhaps if we could see the letter.
GARLING: Perhaps I'll give your Honours the offer.
HANDLEY JA: Just read it out, I think. If there's any complications we'll look at it.
GARLING: Offer to compromise the claim in the following manner. (1) Verdict for the first and second opponents, as they were described; (2) each party to pay their own costs.
HANDLEY JA: The appeal would be dismissed on that basis.
GARLING: Yes, your Honour.
HANDLEY JA: The Court therefore varies the order for costs originally pronounced and substitutes an order that the claimant pay the opponent's costs on an indemnity basis from and after 9 March 1999.