Reported Decision:
60 NSWLR 203
Court of Appeal
CITATION: Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154 HEARING DATE(S): 8 October 2003 JUDGMENT DATE:
14 May 2004JUDGMENT OF: Mason P at 1; McColl JA at 35; Davies AJA at 112 DECISION: 1. Appeal allowed. 2. Set aside the order of Master Malpass dated 22 November 2002. 3. Remit the matter to the costs assessor for determination of fair and reasonable costs in accordance with the law. 4. Declare that the indemnity principle does not apply to the costs ordered to be paid by the Court of Appeal in this case and in matter number CA 40894/1999. 5. Respondent to pay the appellant's costs of this appeal and of the proceedings before the Master, of the Costs Review Panel and of the costs assessment. CATCHWORDS: COSTS - Indemnity principle - whether a nominal party is entitled to recover the costs of proceedings where the benefit of the costs enures to a third party with a real interest in the proceedings - operation of sections 112 and 116 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). (D) LEGISLATION CITED: Compensation Court Repeal Act 2002 (NSW) s 4
Justices Act 1921 (SA) s 77
Legal Profession Act 1987 (NSW) Pt 11, s 174, s 174(1)(a), Pt 11 Div 2, s 175(1), s 178, s 179, s 184(1)(a), s 184(3), s 184(4), s 186, Pt 11 Div 6, s 202, s 208F(1), s 208F(1A), s 208F(2), s 208H, 208KI, s 208L, s 208L(2)(a), s 208L(2)(b)
Supreme Court Act 1970 (NSW) s 76, s 76(2)(b)
Supreme Court Rules 1970 (NSW) Pt 52A r 2, r 32
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 110, s 111A, s 112, s 112(2), s 112(2)(b), s 112(3), s 113, s 116, s 116(1), s 116(7), s 250CASES CITED: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
A Goninan & Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441; (2001) 21 NSWCCR 552
Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65
Backhouse v Judd [1925] SASR 395
Blackall v Trotter (No 1) [1969] CR 939
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Clarke and Chapman v Hart (1858) 6 HL Cas 632, 667; (1858) 10 ER 1443
Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333
Dyktynski v BHP Titanium Minerals Pty Ltd [2001] NSWCA 54; (2001) 50 NSWLR 710
Dyktynski v BHP Titanium Minerals Pty Ltd [2002] NSWSC 1112
Ex parte Slack (1844) 6 ALT 23
Gundry v Sainsbury [1910] 1 KB 645
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
Harold v Smith (1860) 5 H&N 381; (1860) 157 ER 1229
Inglis v Moore (No 2) (1979) 46 FLR 470
Knight v F P Special Assets Limited [1992] HCA 28; (1992) 174 CLR 178
Latoudis v Casey [1990] HCA 59;
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Details
- Case
- [2004] NSWCA 154
- Decision Date
CaseChat Overview and Summary
The appeal concerned the entitlement of a nominal party to recover costs where the benefit of those costs would ultimately enure to a third party with a genuine interest in the proceedings. The dispute arose in the context of workers' compensation legislation, specifically the operation of sections 112 and 116 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). The Court of Appeal of New South Wales was required to determine whether the indemnity principle, which generally limits cost recovery to the actual costs incurred by a party, applied in this specific scenario.
The central legal issue was whether the nominal party, who was not the ultimate beneficiary of the costs, could recover the full amount of costs assessed as fair and reasonable. This involved an examination of the interplay between the indemnity principle and the statutory provisions governing workers' compensation claims and associated costs. The court had to consider the purpose and application of sections 112 and 116 of the Act in determining the scope of cost recovery available to a party in the position of the appellant.
The Court of Appeal allowed the appeal, setting aside the Master's order. The court declared that the indemnity principle did not apply to the costs ordered in this case and a related matter. The reasoning focused on the specific circumstances and the legislative framework, concluding that the nominal party was entitled to recover the fair and reasonable costs of the proceedings. The matter was remitted to the costs assessor for determination of these costs, and the respondent was ordered to pay the appellant's costs of the appeal and related proceedings.
The central legal issue was whether the nominal party, who was not the ultimate beneficiary of the costs, could recover the full amount of costs assessed as fair and reasonable. This involved an examination of the interplay between the indemnity principle and the statutory provisions governing workers' compensation claims and associated costs. The court had to consider the purpose and application of sections 112 and 116 of the Act in determining the scope of cost recovery available to a party in the position of the appellant.
The Court of Appeal allowed the appeal, setting aside the Master's order. The court declared that the indemnity principle did not apply to the costs ordered in this case and a related matter. The reasoning focused on the specific circumstances and the legislative framework, concluding that the nominal party was entitled to recover the fair and reasonable costs of the proceedings. The matter was remitted to the costs assessor for determination of these costs, and the respondent was ordered to pay the appellant's costs of the appeal and related proceedings.
Orders
Orders of the court
1. Appeal allowed. 2. Set aside the order of Master Malpass dated 22 November 2002. 3. Remit the matter to the costs assessor for determination of fair and reasonable costs in accordance with the law. 4. Declare that the indemnity principle does not apply to the costs ordered to be paid by the Court of Appeal in this case and in matter number CA 40894/1999. 5. Respondent to pay the appellant's costs of this appeal and of the proceedings before the Master, of the Costs Review Panel and of the costs assessment.
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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