Gordon and Gotch (Australasia) Limited v Cox

This case concerned an appeal by Gordon & Gotch (Australasia) Limited against Frederick John Cox to the High Court. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The respondent had voluntarily appeared and opposed the motion for special leave to appeal, which was granted subject to an undertaking by the appellant. No order was made regarding the costs of the special leave motion at that time. The respondent sought to include the costs of opposing the special leave motion in his bill of costs for the appeal, but these were disallowed by the Registrar.

The legal issue before the High Court was whether the costs incurred by a respondent in voluntarily opposing a motion for special leave to appeal, where special leave was granted and the subsequent appeal was dismissed with an order for the respondent's costs of the appeal, were recoverable as part of the costs of the appeal.

Starke J. held that the costs of a motion for special leave to appeal are generally considered costs of the appeal, as the application for leave is a necessary first step in the appeal process. He reasoned that if an appellant is entitled to the costs of such a motion under an order for costs of appeal, a respondent who opposes the motion should similarly be entitled to their costs when awarded costs of the appeal. However, the court also stated that a party who voluntarily appears to oppose a motion bears the onus of demonstrating that such costs were not incurred unnecessarily or through over-caution. In this specific instance, Starke J. found that the respondent's intervention was justified due to peculiar circumstances, including the appellant's reserved liberty to amend pleadings, and therefore, the costs were not incurred unnecessarily.

Consequently, Starke J. allowed the summons to review taxation, directing the Principal Registrar to allow the costs of the motion for special leave as part of the costs of the appeal and to consider the quantum of those costs. The appellant was ordered to pay the respondent's costs of the summons.