Coal & Allied Operations Pty Ltd v Crossley

In the Court of Appeal of New South Wales, Coal & Allied Operations Pty Ltd sought to appeal an order of the District Court concerning the assessment of costs. The dispute centred on the interpretation of a schedule of costs, specifically the rates for perusing and scanning documents. Coal & Allied argued that the District Court had erred in its application of the schedule, leading to an assessment of costs that was not fair and reasonable.

The primary legal issue before the Court of Appeal was whether the District Court had correctly interpreted the relevant cost schedule, or if the schedule contained an obvious typographical error that the court was empowered to correct. This involved considering the meaning of terms such as "scanning" and "perusing" in the context of legal costs, and whether a literal interpretation of the schedule, which resulted in a significantly higher scanning fee than a previous version, rendered the schedule absurd and irreconcilable with its purpose of fixing fair and reasonable costs. The court also considered the principles governing the correction of obvious drafting errors in legislation.

The Court of Appeal found that the schedule, as applied literally, contained an obvious and irrational error. It reasoned that the significant increase in the scanning rate, from $3 to $36 per page, when compared to the perusing rate of $15 per page, and the absence of any logical justification for such a disparity, indicated a clear typographical mistake. The court held that where a drafting error is obvious and the intended text is also obvious, the court has the power to correct the error to give effect to the evident purpose of the legislation, even if a literal application is technically possible. Consequently, the court granted leave to amend the summons, set aside the District Court's order regarding costs, and directed the parties to agree on a corrected Certificate of Determination of Appeal, or to make submissions for the court to resolve any remaining dispute. Coal & Allied was ordered to pay Mr Crossley’s costs in the Court of Appeal.