JULIE Posetti v Kosciusko Thredbo Pty Ltd

[2005] ACTCA 13

JULIE POSETTI v KOSCIUSKO THREDBO PTY LTD [2005] ACTCA 13
(1 April 2005)

APPEAL – matter remitted to Master – costs – no issue of principle.

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24-2004
No. SC 478 of 2000

Judges:         Crispin P, Gray and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            1 April 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 24-2004
  )          No. SC 478 of 2000
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JULIE POSETTI

Appellant

AND:KOSCIUSKO THREDBO PTY LTD

Respondent

ORDER

Judges:  Crispin P, Gray and Marshall JJ
Date:  1 April 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the matter be remitted to the Master for rehearing of the further issues as to liability referred to in the judgment herein;

2. the respondent pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 24 -2004
  )          No. SC 478 of 2000
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JULIE POSETTI

Appellant

AND:KOSCIUSKO THREDBO PTY LTD

Respondent

Judges:  Crispin P, Gray and Marshall JJ
Date:  1 April 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The Court gave judgment in this matter on 25 February 2005, upholding the appeal against the Master’s decision to dismiss the appellant’s claim and granting the parties leave to file written submissions on two issues: whether the matter should be remitted to the Master or another judicial officer for rehearing on the question of liability, and what order should be made in relation to the costs of the appeal.

1. So far as the first question is concerned, the appellant’s counsel have now submitted that the matter should be remitted to the Master because he has already had the opportunity of assessing the evidence given by twenty witnesses on this issue and that the parties would be put to substantial expense if forced to adduce that evidence again.  The appeal was not upheld because of any perceived error in the Master’s appraisal of the credibility or reliability of any of the evidence and a complete retrial of the issue would be unnecessary.  There has been no suggestion of bias or any suggestion that the Master might be unable to properly consider the matters that were raised in our judgment or the impact of any new evidence adduced in relation to those matters.  On the other hand, the respondent’s counsel have submitted that, as a consequence of our decision, all issues as to liability should now be open and the matter should be remitted to a different judicial officer so that the respondent does not feel that some of those issues have been predetermined against it by reason of the Master’s previous decision.

1. In fact, the appeal was upheld on only two quite narrow grounds.  First, the Master had regarded the appellant’s claim as dependent upon proof that her fall was caused by ice on the ramp in question and he had not proceeded to consider whether it could have been sustained on the basis that the ramp was so steep and smooth as to be dangerous even in the absence of ice or water.  Second, the Master had failed to determine an issue as to whether her injuries were attributable to negligence in failing to provide adequate handrails.  It was these issues that we intended be remitted for determination.  It was not our intention to require that all issues as to liability be re-litigated.  Accordingly, the contentions advanced on behalf of the respondent must be rejected.

1. We are satisfied that these further issues should be determined by the Master.

1. So far as the second question is concerned, counsel for the appellant have submitted that the costs of the appeal should “follow the event”, that is, be awarded to the party that succeeded on the appeal.  Counsel for the respondent have argued that, on the contrary, the appellant should pay the respondent’s costs or, in the alternative, that there should be no order for the costs of the appeal.  They have contended that the appeal was effectively caused by the failure of the appellant’s counsel to raise the decisive issues in the proceedings before the Master.

1. As far as the appeal is concerned costs should follow the event, but we accept that the failure to raise the issue of whether the ramp would have been dangerous even in the absence of ice or water is relevant to the issue of costs in the proceedings before the Master, though the issue of the handrails was raised in those proceedings.  In our opinion, it is appropriate to leave it to the Master to determine any issues as to the costs of the proceedings before him, including the further proceedings that will be required as a consequence of the successful appeal. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     1 April  2005

Counsel for the Appellant:  Mr J Gormly SC with Mr S Hausfeld
Solicitor for the Appellant:  Pamela Coward and Associates
Counsel for the Respondent:  Mr B J Salmon QC with Mr P Walker
Solicitor for the Respondent:  Wood Fussell
Date of hearing:  25 February 2005
Date of judgment:  1 April 2005