Atkinson v Independent Commission Against Corruption

The applicant, Atkinson, sought to vary orders made by the New South Wales Court of Appeal in a proceeding against the Independent Commission Against Corruption (ICAC). The dispute concerned declarations sought by Atkinson regarding determinations made by the ICAC, and the costs of the appeal. The application to vary the orders was heard by Bathurst CJ, Beazley P, and Basten JA.

The primary legal issue before the Court of Appeal was whether it had the power to vary its previous orders, specifically concerning the costs of the appeal, under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits a court to vary or set aside its own orders in certain circumstances, including where the variation is sought on the basis of success on a particular issue. Atkinson contended that the costs order should be varied to reflect his partial success in the appeal.

The Court of Appeal dismissed Atkinson's motion. It reasoned that the relief sought by way of variation, particularly regarding the costs of the appeal, was not sought at the trial or in the notice of appeal. The Court found no justification for awarding costs on an issue basis, as is permitted under rule 36.16(3A), in the circumstances of this case. The Court concluded that the conditions for varying the costs order under the rule were not met.

Consequently, the Court ordered that the applicant's notice of motion dated 5 July 2016 be dismissed, and that the applicant pay the Commission's costs of the motion.