Griffith v Australian Broadcasting Corporation (No 2)

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Court of Appeal

New South Wales
Case Title: Griffith v Australian Broadcasting Corporation (No 2)
Medium Neutral Citation: [2011] NSWCA 145
Hearing Date(s): On the papers
Decision Date: 08 June 2011
Jurisdiction:
Before:

Hodgson JA at 1; Basten JA at 30; McClellan CJ at CL at 41
Decision:

Notice of Motion dismissed with costs.
[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.]

Catchwords:

COSTS - Appeal - Appellant succeeds on one sub-issue but appeal dismissed - Whether orders should be made dealing with the costs of that sub-issue. 

PROCEDURE - Application to vary costs orders made on appeal - Whether supported by UCPR 36.16(3) or 36.16(3A).
Legislation Cited:

Civil Procedure Act, s 98
Uniform Civil Procedure Rules  36.16, 42.1
Cases Cited:

Australian Conversation Foundation v Forestry Commission (1988) 81 ALR 166
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304
Commonwealth of Australia v Gretton [2008] NSWCA 117
Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373
Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
Habib v Nationwide News Pty Limited (No 2) [2010] NSWCA 291
Hancock v Arnold (No 2) [2009] NSWCA 19
Hughes v Western Australian Cricket Association Inc (1986) ATPR 48-134
Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Ohn v Walton (1995) 36 NSWLR 77
Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140
Rosniak v GIO (1997) 41 NSWLR 608
State Rail Authority of NSW v Codelfa Construction Pty Limited [1982] HCA 51; (1982) 150 CLR 29
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
Turkmani v Visvalingam (No 2) [2009] NSWCA 279
Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA, 338
Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672
Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306
Texts Cited:
Category: Costs
Parties:

Jeremy Norman GRIFFITH  (appellant)  AUSTRALIAN BROADCASTING CORPORATION  (first respondent) David MILLIKAN  (second respondent)
Representation
- Counsel:

K P Smark SC/ S T Chrysanthou  (appellant)
E Raper  (respondents)
- Solicitors:

Hazan Hollander  (appellant)
Mr Rob Simpson, Australian Broadcasting Corporation  (respondents)
File number(s): 2008/290293
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

JUDGMENT

  1. HODGSON JA: The principal judgment in this appeal was…

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Details
Case
[2011] NSWCA 145
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the appellant, Griffith, to vary costs orders made on appeal, following an earlier decision of the Court of Appeal of New South Wales. The Australian Broadcasting Corporation was the respondent. The dispute centred on whether the Court had the power to alter the costs orders relating to the first instance proceedings, given that the appeal itself had been dismissed, albeit with the appellant succeeding on one sub-issue.

The primary legal issue before the Court was whether Uniform Civil Procedure Rule (UCPR) 36.16, specifically subrules (3) and (3A), conferred power upon the Court to vary the costs orders made in the first instance proceedings. The appellant contended that the Court retained such power, while the respondent argued that the limitations on varying judgments or orders after entry, particularly the requirement for exceptional circumstances, applied.

The Court, comprising Hodgson JA, Basten JA, and McClellan CJ at CL, considered the application of UCPR 36.16. While Hodgson JA expressed a tentative view that UCPR 36.16(3) did not apply, citing precedent from *Roads and Traffic Authority of NSW v Palmer (No 2)* and *Habib v Nationwide News Pty Limited (No 2)*, he found that UCPR 36.16(3A) did apply. This subrule permits the Court to consider setting aside or varying a judgment or order as if it had not been entered, provided the notice of motion is filed within 14 days of entry. Despite this power, the Court noted the respondents' submission that the exercise of this power remained circumscribed by general law principles requiring exceptional circumstances, such as a party not having been heard without fault. The Court ultimately dismissed the Notice of Motion.

Orders

Orders of the court

Notice of Motion dismissed with costs.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ
Uniform Civil Procedure Rule 36.16 provides as follows: 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9) (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. It was submitted for the respondents that r 36.16(3) does not apply: Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [20]-[21]; Habib v Nationwide News Pty Limited (No 2) [2010] NSWCA 291 at [35]. I remain of the tentative view expressed in the latter case that Palmer is binding on the Court, and prevails over the contrary obiter in Hancock v Arnold (No 2) [2009] NSWCA 19 at [10], and so would accept the respondents' submission on this point. However, in my opinion r 36.16(3A) does apply, because the notice of motion was filed within fourteen days after the order disposing of the appeal was made; so that the Court does have power to make a different order concerning the costs of the first instance proceedings. It was submitted for the respondents that the power remains circumscribed by the limitations that the general law imposed on the power to set aside or vary a judgment or order prior to that judgment or order being entered. Accordingly, the respondents submitted, exceptional circumstances were required; and generally the power would not be exercised unless the applicant could show that without fault on its part it has not been heard: State Rail Authority of NSW v Codelfa Construction Pty Limited [1982] HCA 51; (1982) 150 CLR 29 at 38, Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 674, Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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