Wyong Shire Council v Randall and 2 Ors

[2003] NSWCA 143

CITATION:	Wyong Shire Council v Randall & 2 Ors [2003] NSWCA 143 revised - 6/06/2003
HEARING DATE(S):	28/05/2003
JUDGMENT DATE:	28 May 2003
JUDGMENT OF:	Santow JA
DECISION:	Stay not granted; Costs of to-day, 28 May 2003, and of Monday, 26 May 2003, necessitated by the matter having failed to be heard because of some misunderstanding that it was to be dealt with in Newcastle, should be paid by the Claimant
CATCHWORDS:	PROCEDURE -- Stay of Judgment awarding damages pending leave to appeal to Court of Appeal -- relevant factors
PARTIES :	WYONG SHIRE COUNCIL (Claimant) LESLIE EDWARD RANDAL (First Opponent) THE ENTRANCE BOWLING CLUB LIMITED (Second Opponent) SCOTT LAING t/as Laing Concretors Pty Limited (Third Opponent)
FILE NUMBER(S):	CA 40344/03
COUNSEL:	P Cummings (Claimant) A Fennell (First Opponent) Q Pieper (Second Opponent) B Staggs (sol.) (Third Opponent)
SOLICITORS:	Hunt & Hunt (Claimant) Nash, Allen, Williams & Wotton (First Opponent) Henry Davis York (Third Opponent)

CA 40344/03

SANTOW JA

28 MAY 2003 [revised 6 June 2003]

WYONG SHIRE COUNCIL v Leslie Edward RANDALL & 2 Ors

Judgment

1 This is an application for a stay of a judgment by Gibson DCJ in the District Court for $29,715, including $1800 for past out-of-pockets and $2000 for future out-of-pockets. The proceedings in very broad summation concerned the following circumstances.

2 The first opponent as plaintiff took proceedings against Wyong Shire Council, which is the claimant before me. Those proceedings were for damage as resulted from the plaintiff treading on nails on a concrete drain in an area in which the Council had undertaken responsibility for maintenance, being a grassed field adjoining a bowling club. The plaintiff tripped as a result and broke his arm. Council is sued as occupier.

3 There were other defendants; namely, the bowling club itself and a builder who had constructed a vertical wall adjoining the bowling club and contiguous to the end of the concrete drain.

4 Gibson DCJ in a careful and closely written document concluded in favour of the plaintiff and against the first defendant Council, awarding damages as I have described.

5 Although the actual damage amount is modest, there are costs involved of some $200,000 still to be assessed. The claimant did not and indeed could not argue strenuously against the proposition that, if those costs were paid upon assessment direct to the relevant legal advisers, there would then be any difficulty about their disgorgement. Disgorgement would only arise should leave to appeal be granted and the appeal ultimately succeed. That said, I record that the claimant did continue to oppose a stay even of the cost orders.

6 The case put by the claimant for a stay comes down to this. The original plaintiff is a man in his late seventies, a pensioner owning no freehold property and, as it turns out, in hospital, seriously ill, suffering from cancer. That last emerges from an affidavit filed on behalf of the first opponent dated 16 May 2003 by his solicitor Mr Allen. Thus,…