58 If I may, with respect, say so, the submissions made by counsel for the Opponent as to the nature and extent of "the nonfeasance/misfeasance rule" reveal a total inability on the part of counsel to understand the principles applicable to the immunity to which road authorities such as the Claimant are entitled. That immunity negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). It is reinforced by the judicial construction that even a statutory duty to repair does not expose a road authority to liability unless the legislature has clearly conveyed a contrary intention either expressly or by necessary implication.
59 While it is true that the immunity can be claimed only for nonfeasance and not in respect of accidents caused by misfeasance, it is to be noted that, in order to be held liable for misfeasance, the relevant authority must be shown to have been an active agent in creating, or adding to, an unnecessary danger in the highway, including those parts of the road reserve beyond the carriageway. The improper nature of the original act of the road authority must always be the foundation of any complaint against it if that complaint is to be successful.
60 The principal basis upon which Mr. Campbell, who appeared for the Claimant on the Motion with which the Court is now concerned to deal, sought to have the earlier order of dismissal revoked, and leave to appeal granted, was that, even if -contrary to the submissions which he had advanced on the original application for leave to appeal - the materials then before the Court did not demonstrate that the hearing before Puckeridge DCJ did not proceed on the basis of a concession by the Claimant that it was an occupier of the lands in question, the additional materials which were now before the Court demonstrated that, when the Court, as formerly constituted, dismissed the application for leave to appeal, it did so under a misapprehension as to the basis upon which the hearing before Puckeridge DCJ had been conducted. Mr. Campbell then sought to build upon that foundation by submitting that the grounds upon which Puckeridge DCJ founded his Judgment for the Opponent were clearly wrong in law and that, notwithstanding the comparatively small verdict, such a Judgment ought not to be permitted to stand.
61 While conceding, first, that whatever may have been the position at the commencement of the hearing before Puckeridge DCJ, it was clear by the time counsel's submissions were made that Mr. Quickenden appreciated that the Claimant did not concede that it was to be regarded as an occupier and that, by contrast, it claimed the benefit of "the nonfeasance/misfeasance rule"; and while conceding that Puckeridge DCJ did not seek to found his Judgment upon any concession by the Claimant that it was an occupier, Mr. J.S. Coombs QC who appeared with Mr. Quickenden on the hearing before this Court, submitted that, as the Claimant's case on the hearing before Puckeridge DCJ had not been clearly elaborated upon, as the verdict found for the Opponent was but a comparatively small one, as the costs of the hearing before Puckeridge DCJ and of the applications to this Court will inevitably exceed the amount of the verdict; and as - so it was submitted - there had been a considerable delay then, even if the Court had power so to do, it should not make the orders sought by the Claimant.
62 The order of the Court as then constituted dismissing the application for leave to appeal having been passed and entered prior to the filing of the Notice of Motion with which this Court is now concerned to deal, the power of this Court, either, to revoke that order and grant leave to appeal, or, to entertain a fresh application for leave to appeal, must depend, in the first instance, upon the question whether the earlier order of the Court was an interlocutory or a final one.
63 The test of whether or not an order is a final rather than an interlocutory one is, not what are the practical consequences of the order which has been made, but the nature of the order and, in particular, whether the order finally determines the rights of the parties inter se (Hall v. The Nominal Defendant (1966) 117 CLR 423; Licul v. Corney (1976) 50 ALJR 438, Port of Melbourne Authority v. Anshun Pty. Limited (No. 1) (1980) 147 CLR 35; Carr v. Finance Corporation of Australia Limited (No. 1) (1980-1981) 147 CLR 246; Sanofi v. Parke Davis Pty. Limited (No. 1) (1982) 149 CLR 147; A. Hudson Pty. Limited v. Legal & General Life of Australia Limited (1985) 1 NSWLR 701; Dousi v. Colgate Palmolive Pty. Limited (1987) 9 NSWLR 374).
64 As the power to grant leave to appeal is discretionary. and as, in any event, the grant or refusal of leave to appeal does not finally determine the rights of the parties inter se, both an order granting leave to appeal (Sanofi v. Parke Davis Pty. Limited (No. 1) supra and an order refusing leave (see Coles v. Wood [1981] 1 NSWLR 723) are interlocutory.
65 The fact that such orders are interlocutory means that, even though leave to appeal may have been granted that, leave may later be revoked (Sanofi v. Parke Davis Pty. Limited (No. 1) supra and that, if leave has earlier been refused, it is nonetheless open to the Court on a subsequent application, if the circumstances are appropriate, to grant that leave (Hall v. The Nominal Defendant supra; Dousi v. Colgate Palmolive Pty. Limited supra). Although, so far as I have been able to ascertain, there is no reported instance in this country of an order refusing leave subsequently being revoked, there seems to be no reason in principle why, in an appropriate case the Court should not be able to do so - such a course was in fact adopted by the House of Lords in Buttes Gas & Oil Co. v. Hammer [1982] AC 888 in which case, notwithstanding that the Appeal Committee had, in 1975, refused leave to appeal, the Appeal Committee, in 1980, discharged the earlier order and gave leave to appeal against the relevant decision of the Court of Appeal out of time.
66 Although the Court had, during the course of Mr. Campbell's submissions, indicated that it was disposed to the view that it had power to revoke the earlier order dismissing the application for leave to appeal and to grant leave (T. 16), Mr. Coombs did not, during the course of his submissions, seek to dissuade the Court from that view.
67 The question thus is whether the Court ought, as a matter of discretion, decline to revoke the earlier order and refuse leave to appeal.
68 Although I am only too conscious of the comparatively small amount of the verdict which the Opponent obtained; of the time which has passed since Puckeridge DCJ delivered his Judgment; and of the amount of the costs which are involved, it seems to me that, where, as I believe is the case here, a Judgment in respect of which leave to appeal is sought is insupportable, and where it has not been suggested that the Opponent's position would be improved on a new trial, it would be wrong for the Court now to refuse to revoke the earlier order made by the Court and decline to grant leave to appeal.
69 The question then is, whether the grant of leave ought to be made subject to some conditions, as, for example, in relation to costs.
70 Although I have a great deal of sympathy for the position in which the Opponent now finds herself, I do not consider that, in all the circumstances of this case, it would be proper to deprive the Claimant of the whole, or any part, of its costs. As will be apparent from what I have earlier recorded, the Claimant's case as pleaded, and as conducted on the hearing before Puckeridge DCJ, was that the Claimant was to be regarded in law as the occupier of the land over which the access way passed, and was liable as such occupier to persons passing across the access way in the event that they suffered injury due to the dangerous nature of the access way. In its Defence, the Claimant put the Opponent's case in issue and, on the hearing before Puckeridge DCJ, the Claimant, although not articulating its case as well as might have been done, denied that it was to be regarded, in law, as subject to the liabilities of an occupier of land and asserted that it was entitled to the benefit of "the nonfeasance/misfeasance rule". Further, it is clear that Puckeridge DCJ understood that such was the Claimant's case, but held - not relying upon any concession on the part of the Claimant for that purpose - that the Claimant was subject to the liabilities of an occupier of land and was not, in the circumstances, entitled to the benefit of "the nonfeasance/misfeasance rule". Despite these facts, which, in my view, were apparent on the face of the materials which were before the Court as then constituted, the Court when refusing leave to appeal did so under a misapprehension that the hearing before Puckeridge DCJ proceeded upon the basis of such a concession. Although the additional materials which were placed before this Court reveal in detail the submissions advanced by the parties to Puckeridge DCJ they, in my view, do no more than confirm what the materials originally before the Court revealed as to the manner of conduct of the hearing before Puckeridge DCJ.
71 For these reasons I propose the following orders: