Comcare v Patrick Operations Pty Ltd & Anor

The appeal concerned the costs consequences of a discontinuance of an appeal. Comcare, the appellant, had filed a notice of motion to discontinue its appeal against Patrick Operations Pty Ltd and another respondent. The primary issue before the Court of Appeal of New South Wales was whether Comcare should be ordered to pay the costs of the respondents, notwithstanding the discontinuance.

The Court was required to determine whether there were any grounds to depart from the usual rule that an appellant who discontinues an appeal is liable for the costs of the respondent. Specifically, the Court considered whether any "reason shown" existed to justify an order otherwise, and whether the discontinuance involved a "question of principle" that might warrant a different costs outcome.

The Court of Appeal, comprising Giles JA, Ipp JA, and Tobias JA, found no reason to depart from the general rule. The Court noted that the notice of motion for discontinuance was filed on 19 May 2006. In the absence of any compelling reason or a question of principle being demonstrated by the appellant, the Court dismissed the notice of motion.

Consequently, the Court ordered that Comcare pay the costs of the respondents.