Harding v Bourke (No 2)

[2000] NSWCA 373

CITATION:	HARDING v BOURKE (NO 2) [2000] NSWCA 373
FILE NUMBER(S):	CA 40424/99
HEARING DATE(S):	Heard on the papers
JUDGMENT DATE:	20 December 2000
PARTIES :	DR BRUCE HARDING v GWEN BOURKE
JUDGMENT OF:	Mason P at 1; Meagher JA at 11; Heydon JA at 12

COUNSEL:	Appellant: D J Hooke Respondent: K Pryde
SOLICITORS:	Appellant: Colin Biggers & Paisley Respondent: Schrader & Associates
DECISION:	See pars 8, 9, 10

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40424/99
DC 8440/95


MASON P
MEAGHER JA
HEYDON JA



Wednesday 20 December 2000

DR BRUCE HARDING v GWEN BOURKE (No 2)

JUDGMENT

1    MASON P: On 23 March 2000 the Court allowed this appeal and made consequential orders (Harding v Bourke [2000] NSWCA 60). 2 The respondent (the plaintiff in the court below) seeks a special order for costs based upon the appellant’s rejection of an offer of compromise made in accordance with Pt 22 of the Supreme Court Rules. The respondent seeks an order that the appellant pay the respondent’s costs of the appeal (including the leave application) and that the costs of the hearing before Naughton DCJ should be made costs in the cause. 3 The respondent’s offer, made after leave to appeal had been granted, proposed the following consent orders:

1. Appeal allowed.

2. Proceedings remitted to the District Court upon the Plaintiff’s undertaking to apply for:
a. An extension of time seeking rescission of the deemed dismissal.

b. Such rescission.

3. The Respondent to pay the Appellant’s costs of the appeal (noting that the Respondent will apply for a Suitors Fund Certificate).

4 The offer was made in accordance with Pt 22. It was rejected on 26 November 1999. 5 The result of the appeal was similar to that proposed in the offer, but there were two differences. First, this Court set aside all of the orders of Naughton DCJ made on 14 May 1999 thereby leaving the costs of the motion that led to those orders to the discretion of the District Court when it addresses the motion which this Court remitted for further hearing in accordance with its reasons. Secondly, the respondent was proposing to pay the appellant’s costs of the appeal, whereas this Court ordered costs of the appeal to be costs in the motion. Our order was based upon the appellant’s mixed success in the appeal in that we upheld the appellant’s submission that Pt 12 r4(c) of the District Court Rules was valid while rejecting the appellant’s submission that the motion for relief against the consequences of failure to file a timely praecipe in the District Court was doomed to failure. 6 It is relevant that the respondent’s offer of compromise did not relate to the ultimate disposition of the action in the District Court, but was effectively confined to the disposition of the proceedings in the Court of Appeal. This in itself creates difficulties with respect to the direct application of Pt 51A r22 of the Supreme…