Waterways Authority v Fitzgibbon

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

Matter No S513/2004

THE WATERWAYS AUTHORITY  APPELLANT

AND

DANIEL GERARD FITZGIBBON & ORS  RESPONDENTS

Matter No S98/2005

MOSMAN MUNICIPAL COUNCIL  APPLICANT

AND

DANIEL GERARD FITZGIBBON &ORS  RESPONDENTS

Matter No S131/2005

MIDDLE HARBOUR YACHT CLUB  APPLICANT

AND

DANIEL GERARD FITZGIBBON & ORS  RESPONDENTS

The Waterways Authority v Fitzgibbon

Mosman Municipal Council v Fitzgibbon
Middle Harbour Yacht Club v Fitzgibbon
[2005] HCA 57

5 October 2005
S513/2004, S98/2005 & S131/2005

ORDER

1.The time within which the second and third respondents may apply for special leave to appeal is extended, special leave to appeal is granted, the applications are to be treated as appeals and heard with the appellant's appeal.

2.        Each appeal is allowed with costs.

3.Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 3 December 2003 and:

(a)      In place of order 3, order that there be a new trial generally;

(b) In place of order 4, order that the respondents in the Court of Appeal pay the costs of the appeal of the appellant in that Court and that the costs of the trial be costs in the new trial.

On appeal from the Supreme Court of New South Wales

Representation:

Matter No S513/2004

J L Glissan QC with J S Whyte for the appellant (instructed by McCabe Terrill)

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Curtis & Co)

B W Walker SC with R J Cheney for the second respondent (instructed by  Riley Gray-Spencer)

M T McCulloch SC with S P W Glascott for the third respondent (instructed by Phillips Fox)

Matter No S98/2005

M T McCulloch SC with S P W Glascott for the applicant (instructed by Phillips Fox)

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Curtis & Co)

J L Glissan QC with J S Whyte for the second respondent (instructed by McCabe Terrill)

B W Walker SC with R J Cheney for the third respondent (instructed by  Riley Gray-Spencer)

Matter No S131/2005

B W Walker SC with R J Cheney for the applicant (instructed by Riley Gray-Spencer)

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Cutis & Co)

J L Glissan QC with J S Whyte for the second respondent (instructed by McCabe Terrill)

M T McCulloch SC with S P W Glascott for the third respondent (instructed by Phillips Fox)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ.   The facts of the case appear from the reasons of Callinan J.  Three issues were argued before this Court.  First, was the Court of Appeal in error in reversing the decision of the…

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Details
Case
[2005] HCA 57
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Court of Appeal of New South Wales concerning a claim in negligence. The dispute arose from injuries sustained by Mr Fitzgibbon when entering water from a jetty, allegedly due to the absence of a handrail. The Waterways Authority, along with a yacht club, were identified as parties responsible for the design or approval of the jetty. The central question involved whether Mr Fitzgibbon entered the water deliberately and whether contributory negligence played a role.

The High Court was required to determine whether the Court of Appeal had erred in ordering a new trial on a limited factual basis. Specifically, the Court of Appeal had substituted a factual finding that was decisive on the issue of causation. The High Court also had to consider the sufficiency of the trial judge's reasons and whether a miscarriage of the fact-finding process had occurred, justifying the exercise of the power to order a new trial.

The High Court allowed the appeals, setting aside the orders of the Court of Appeal. It determined that a new trial should be ordered generally, rather than on a limited basis. The Court found that the Court of Appeal's approach of substituting a factual finding was inappropriate and that the interests of justice required a broader retrial. Consequently, the respondents in the Court of Appeal were ordered to pay the costs of that appeal, and the costs of the original trial were to be costs in the new trial.

Orders

Orders of the court

1. The time within which the second and third respondents may apply for special leave to appeal is extended, special leave to appeal is granted, the applications are to be treated as appeals and heard with the appellant's appeal.

2. Each appeal is allowed with costs.

3. Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 3 December 2003 and:

(a) In place of order 3, order that there be a new trial generally;

(b) In place of order 4, order that the respondents in the Court of Appeal pay the costs of the appeal of the appellant in that Court and that the costs of the trial be costs in the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ HUGH J GUMMOW J KIRBY AND HEYDON JJ

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, GUMMOW J, KIRBY AND HEYDON JJ

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