BlueScope Steel Ltd v Cartwright (No 2) - [2015] NSWCA 96

Court of Appeal
Supreme Court

New South Wales

Case Name:	BlueScope Steel Ltd v Cartwright (No 2)
Medium Neutral Citation:	[2015] NSWCA 96
Hearing Date(s):	On the papers
Date of Orders:	14 April 2015
Decision Date:	14 April 2015
Before:	Beazley P; Ward JA; Emmett JA
Decision:	(1) Appeal allowed. (2) Cross-appeal (filed by the second respondent) allowed. (3) Second cross-appeal (filed by the first respondent) dismissed. (4) The orders of Simpson J on 15 August 2013 be set aside, and, in lieu thereof, there be a verdict and judgment for the appellant and the second respondent. (5) The first respondent pay the costs of the appellant and of the second respondent of the proceedings before Simpson J. (6) The first and second respondents pay the appellant’s costs of the appeal. (7) The first respondent, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951 (NSW). (8) No order as to the costs of the cross-appeal or of the second cross-appeal.
Catchwords:	PROCEDURE – costs – whether the second respondent should be ordered to pay the costs of the successful appellant of the appeal, in circumstances where the second respondent was found not to be liable for the first respondent’s injuries – whether the fact that the second respondent had sought to support the primary judge’s findings on several issues should result in costs not following the event – Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	BlueScope v Cartwright [2015] NSWCA 25
Category:	Costs
Parties:	BlueScope Steel Ltd (Appellant) Sydney Cartwright (First Respondent) Workers Compensation Nominal Insurer (Second Respondent)
Representation:	Counsel: D Talintyre with J Mack (Appellant) B Dooley SC with O Dinkha (First Respondent) J Dodd (Second Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Slater & Gordon Solicitors (First Respondent) Kaden Boriss Lawyers (Second Respondent)
File Number(s):	2013/272393
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Supreme Court of NSW
Jurisdiction:	Common Law Division
Citation:	Cartwright v Bluescope Steel Ltd [2013] NSWSC 900
Date of Decision:	15 August 2013
Before:	Simpson J
File Number(s):	2009/297638

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: On 23 February 2015, the Court published its reasons for concluding that BlueScope’s appeal and the Insurer’s cross-appeal should both be allowed, that the orders of the primary judge should be set aside, and that, in lieu of those orders, there should be a verdict and judgment for BlueScope and the Insurer, together with an order that Mr Cartwright pay the costs of BlueScope and of the Insurer of the proceedings before the primary judge: BlueScope v Cartwright

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BlueScope Steel Ltd v Cartwright (No 2)

Details

AGLC: BlueScope Steel Ltd v Cartwright (No 2) [2015] NSWCA 96
Case: [2015] NSWCA 96
Decision Date: 14 April 2015

CaseChat Overview and Summary

In *BlueScope Steel Ltd v Cartwright (No 2)*, the Court of Appeal of New South Wales considered an appeal by BlueScope Steel Ltd (the appellant) against a decision of Simpson J, which had found the appellant liable for injuries sustained by the first respondent, Mr. Cartwright. The second respondent, who was also involved in the proceedings, was found not to be liable for Mr. Cartwright’s injuries. The appeal concerned the appropriate orders for costs, particularly whether the second respondent should bear the costs of the successful appellant, despite having supported the primary judge's findings on certain issues.

The central legal issue before the Court of Appeal was whether the general rule that costs follow the event should be departed from in relation to the second respondent. Specifically, the court had to determine if the second respondent's actions in supporting the primary judge's findings on several issues warranted an order that it should not pay the appellant's costs of the appeal, even though the appellant was successful. This involved an interpretation of Rule 42.1 of the *Uniform Civil Procedure Rules 2005* (NSW).

The Court of Appeal allowed the appeal, finding that the primary judge's decision regarding the appellant's liability was incorrect. The court also allowed the cross-appeal filed by the second respondent and dismissed the second cross-appeal filed by the first respondent. Consequently, the original verdict and judgment against the appellant were set aside, and a verdict and judgment were entered for both the appellant and the second respondent. The court ordered the first respondent to pay the costs of both the appellant and the second respondent for the proceedings before Simpson J, and for the first and second respondents to pay the appellant's costs of the appeal. A certificate under the *Suitors’ Fund Act 1951* (NSW) was granted to the first respondent. No orders were made as to the costs of the cross-appeal or the second cross-appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Cross-appeal (filed by the second respondent) allowed.

(3) Second cross-appeal (filed by the first respondent) dismissed.

(4) The orders of Simpson J on 15 August 2013 be set aside, and, in lieu thereof, there be a verdict and judgment for the appellant and the second respondent.

(5) The first respondent pay the costs of the appellant and of the second respondent of the proceedings before Simpson J.

(6) The first and second respondents pay the appellant’s costs of the appeal.

(7) The first respondent, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951 (NSW).

(8) No order as to the costs of the cross-appeal or of the second cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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