ACQ v Cook (No 2)

The case of ACQ v Cook (No 2) concerned appeals before the Court of Appeal of New South Wales, presided over by Beazley JA, Giles JA, and Campbell JA. The central dispute revolved around the appropriate orders for costs in proceedings where Mr Cook had suffered injury. Specifically, the appeals addressed whether ACQ and Aircair, or Aircair alone, should bear the costs incurred by NorthPower, a party that had been joined to the litigation.

The primary legal issues before the Court of Appeal were whether to grant a Bullock order or a Sanderson order, and the principles governing the exercise of discretion in making such orders. This required the court to determine whether it was reasonable and proper for Mr Cook to have sued NorthPower, particularly given that NorthPower had already been joined to the proceedings by way of a cross-claim from other parties who denied liability. The court also had to consider the circumstances under which NorthPower was joined, including the fact that the limitation period had expired at that time, and the basis upon which NorthPower was sued (under statute) compared to the successful defendant (in tort).

The Court of Appeal reasoned that the joinder of NorthPower was a critical factor in determining costs. It noted that Aircair had, early in the proceedings, questioned why NorthPower was not a defendant and suggested Mr Cook consider joining them. NorthPower was ultimately joined after the limitation period had expired, requiring leave of the court. The court considered the evidence that Mr Cook only obtained a report indicating a whole person impairment exceeding 15% on 21 April 2004, which was a significant factor in his ability to proceed against NorthPower. The court ultimately determined that ACQ and Aircair should pay Mr Cook's costs on an ordinary basis up to 17 November 2006, and on an indemnity basis thereafter, and also pay NorthPower's costs.