Hastings Council v Abbott

[1999] NSWCA 300

CITATION:	Hastings Council v Abbott & Anor [1999] NSWCA 300
FILE NUMBER(S):	CA 41064/98
HEARING DATE(S):	13 August 1999
JUDGMENT DATE:	13 August 1999
PARTIES :	Hastings Council (Claimant) v Doris Amy Abbott (First Opponent) Northpower Australia (Second Opponent)
JUDGMENT OF:	Meagher JA at 5; Stein JA at 6; Davies AJA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	63/97
LOWER COURT JUDICIAL OFFICER:	Christie DCJ

COUNSEL:	C - Mr G Curtin O1 - Submitting Appearance O2 - Ms Oakley
SOLICITORS:	C - Phillips Fox O1 - Priest McCarron O2 - Ebsworth & Ebsworth
CATCHWORDS:	Leave to Appeal
DECISION:	Dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41064/98
DC 63/97


MEAGHER JA
STEIN JA
DAVIES AJA

FRIDAY, 13 AUGUST 1999


HASTINGS COUNCIL v Doris Amy ABBOTT & ANOR
JUDGMENT

1    DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales. His Honour was concerned with a claim for personal injuries brought by Mrs Doris Amy Abbott against Hastings Council and Northpower Australia. Mrs Abbott had fallen when walking along Clarence Street, Port Macquarie at a part of the footpath where works had been undertaken by Northpower, a local electricity authority. Those works had been undertaken in association with a general upgrading of the area for which Hastings Council had authority. The proceedings were settled so far as Mrs Abbott was concerned and an order was made in her favour for $75,000. His Honour gave judgment for that sum and ordered that Hastings Council and Northpower each be responsible for the payment of one-half thereof. It is said that the appeal is brought on a point of principle.

2    In my opinion, it is highly inappropriate that an appeal to the Court of Appeal be brought in relation to a sum of only $37,500, in relation to events such as this, unless there is a significant point of principle to be determined by the Court, a point that can be stated by the Court which may be of general use to the community. The Court of Appeal ought not to be involved in the determination of what are relatively minor claims. In my opinion, this is the sort of matter that ought to have been resolved in a practical manner between the Council and Northpower. If they could not agree, they ought to have asked some responsible engineer to determine the answer.

3    Mr Curtin, counsel for Hastings Council, has put a number of points and says that, as a matter of principle, this was a case of nonfeasance and not of misfeasance and that Hastings Council was not responsible. It may well be that, if the matter were looked at fully and all the points examined, the views put by Mr Curtin would be found to be correct; but it is not, in my opinion, appropriate for the Court of Appeal to become involved in sifting through the somewhat complicated and possibly inadequate facts of the case. No evidence was given by anyone on behalf of Hastings Council.

4    I think that, in the circumstances, this is not an appropriate case in which to grant leave to appeal. I would refuse the application for leave and would order that Hastings Council pay the costs of the application.

5    MEAGHER JA: I agree.

6    STEIN JA: I also agree that leave to appeal should be refused with costs. Primarily because, as Davies AJA explains, a relatively small amount of only $37,500 is involved. As to the claims of principle involved, both issues may have been established on the evidence but this is difficult to say without an exhaustive inquiry into every aspect of the evidence. In other words, it may well be that the Council was liable for misfeasance as playing an active role. Further, if one were able to ascertain the terms of the contract, it is possible that the Council may have also had a contractual liability.

7    These factors, together with the small amount involved, lead me to the conclusion that the application for leave should be refused.

8    MEAGHER JA: The orders of the Court therefore are the orders proposed by Davies AJA.

9    OAKLEY: Could I make an application for indemnity costs since 2 August in this matter?

10    MEAGHER JA: Yes.

11    OAKLEY: I’ll hand up to the Court copies of a letter sent by my instructing solicitors, dated 2 August 1999. I hand a copy to my friend.

12    MEAGHER JA: In this matter, Miss Oakley has drawn our attention to a letter dated 2 August 1999 from Messrs Ebsworth & Ebsworth to Messrs Phillips Fox on the question of costs. It is what is popularly called a Calderbank letter. Do you oppose that?

13    CURTIN: There is not much I can say your Honour other than the Summons was filed on 2 March, the letter is dated 2 August.

14    STEIN JA: It may only be the costs on an indemnity basis from the date of the Calderbank offer.

15    CURTIN: Yes, your Honour.

16    MEAGHER JA: The claimant should pay the opponent’s costs on an indemnity basis but only as from 2 August 1999.
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