Waverley Municipal Council v Cheowiry

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Waverley Municipal Council v Cheowiry [2003]  NSWCA 12

FILE NUMBER(S):
40338/02

HEARING DATE(S):            5 February 2003

JUDGMENT DATE: 05/02/2003

PARTIES:
Waverley Municipal Council - Claimant
Michael Cheowiry - Opponent

JUDGMENT OF:      Mason P Giles JA Ipp JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 6375/01

LOWER COURT JUDICIAL OFFICER:     Bell DCJ

COUNSEL:
P R Garling SC & M T McCulloch - Claimant
D B McGovern SC & A J O'Brien - Opponent

SOLICITORS:
Phillips Fox - Claimant
M D Di Re, Fairfield - Opponent

CATCHWORDS:
Leave to appeal - extension of time - applicant stated would not appeal, then changed its mind - unsatisfactory reason for change of mind - refusing application would not cause injustice to applicant - extension of time refused.

LEGISLATION CITED:

DECISION:
Application refused.  Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40338/02
DC  6375/01

MASON P
GILES JA
IPP JA

Wednesday 5 February 2003

WAVERLEY MUNICIPAL COUNCIL v CHEOWIRY

Judgment

1. GILES JA:  The opponent brought proceedings against the claimant for damages for injuries received when he fell down a cliff face at Ben Buckler, North Bondi, in 1996.  The claimant was found liable on the basis that, although the danger in the opponent starting to make his way down the cliff face was obvious and was appreciated by the opponent, the claimant should have put a warning sign or a fence which would have operated, as the opponent said in his evidence, to make him think twice about doing what he did.  Contributory negligence of 50 per cent was found, and the opponent obtained a judgment for $68,000.

2. This is an application for an extension of time in which to seek leave to appeal, the proposed appeal being as to liability only, and for leave to appeal.  We have heard argument on the question of an extension of time on the assumption that there is an arguable case in any appeal.  That assumption remains for what I now say.

3. Judgment was given on 21 September 2001.  On 17 October 2001 the claimant’s solicitor wrote to the opponent’s solicitor saying that they were “instructed not to appeal the Court’s decision”.  In evidence given in a subsequent stay application the claimant’s solicitor said that the decision not to appeal was made “for commercial reasons”, meaning that the claimant (or perhaps more accurately its insurer) did not wish to or was not prepared to incur more costs in an appeal given the amount of the judgment.  The decision was made after the claimant’s solicitors had offered to obtain for the claimant counsel’s advice as to the result in the proceedings and the prospects of an appeal.

4. On 1 February 2002 the opponent’s solicitor sought payment of the judgment sum.  The claimant’s solicitor told her she was awaiting instructions about whether to appeal.  This first intimation of a possible change of stance came about, according to the solicitor, because…