Griffith v Australian Broadcasting Corporation (No 2)

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.