AT v Commissioner of Police (NSW) (No 2)

The appeal concerned a notice of motion filed by the appellant, AT, seeking to vary a costs order made by the court on 4 June 2010. The respondent was the Commissioner of Police (NSW). The motion was filed outside the 14-day time limit prescribed by rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issue before the Court of Appeal was whether the court had the power to vary the costs order when the application was filed out of time, and if so, whether that power should be exercised. This involved considering the strictness of the time limitation imposed by rule 36.16(3A) and whether the court could dispense with this rule, either by relying on general legal principles or by omitting the rule entirely. The appellant also argued that the judgment should have been "no less favourable" to them than the terms of an offer they had made.

The Court of Appeal held that rule 36.16(3A) imposed a stringent time limit for varying judgments or orders, and that the court's power to dispense with the rule was limited. The court found that the appellant had not demonstrated a sufficient basis to justify the exercise of its discretion to extend time or to vary the original costs order. The argument based on the offer was also found to be without merit in the context of varying the costs order.

Consequently, the Court of Appeal dismissed the appellant's motion seeking to vary the costs order and ordered the appellant to pay the respondent's costs of the motion.