Monthly Archive July 2015

Warren v Revesby Heights Ex-Servicemen’s Memorial Club Ltd [2001] NSWCA 465

In this matter Greg Walsh acted for the Appellant who was unsuccessful in Appeal arising from a decision of a District Court Judge to dismiss his claim for damages arising from injuries sustained in an organised billy-cart race on a roadway at Revesby.

The Appellant was watching from the side of the road. The billy-cart race was organised as a charity event and the issue on Appeal as at Trial was liability, namely determining who it was that had organised and controlled the event.

Held: per Stein JA (Mason P and Rolfe AJA agreeing):

1. The trial judge’s conclusion that the first respondent did not organise or control the event was open and consistent with the evidence.

2. It was open to the trial judge to find that the appellant had not established the second respondent was in control of or organised the billy cart race.

3. The trial judge’s finding that the third respondent did not organise or control the 1998 race was open and supported by evidence.

4. The finding that the appellant’s accident was not foreseeable was available on the evidence.

Per Mason P:

1. The failure to erect barriers that would have protected the class of spectators including the Appellant did not indicate a breach of the duty to exercise reasonable care with respect to the safety of spectators and competitors.

Herrick v Knowles [No. 2] [2015] NSWSC 54 (11 February 2015)

In this matter Greg Walsh acted for the defendant, Thomas Knowles, in Supreme Court Proceedings in which the Plaintiff, Ms Herrick, seeks damage from Trustees from Thomas Knowles and the Provincial of the Blessed Sacrament Congregation.

The Plaintiff had issued a Subpoena addressed to Dr Sharon McCullum who had been treating Mr Knowles. A Notice of Motion was filed seeking order that the Plaintiff not be permitted access to any material being produced in response to the Subpoena issued to Dr McCallum.

On 5 September 2014, Harrison AsJ made an order that the Plaintiff was refused access to the report of Dr McCallum dated 9 November 2011. See Herrick v Knowles [2014] NSWSC 1223.

An application was made for costs under S. 98 Civil Procedure Act 2005.

s.98 of the CPA gives the Court a broad direction to award costs , including ordering a party to proceed against the pay of the cost of the non-party. See Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 per Barrett J at 16; Petrovski V Radin [2002] NSWSC 323 per Sperling J [14] [16]; O’Keith V Hayes Knight GTO Pty Ltd [2005] NSWFCA 1559 Nicholson J [24].

Harrison AsJ ordered the Plaintiff to pay Dr McCallum’s costs.