Hillig v Darkinjung Pty Ltd (No 2)

This case concerned an appeal regarding costs orders made in proceedings before Austin J. The appellant sought to recover costs from the seventh respondent, Mr Cunliffe, who had filed a submitting appearance. The dispute centred on whether Mr Cunliffe, as a non-party to the original proceedings, could be ordered to pay costs, and conversely, whether he was entitled to recover his own costs. The Court of Appeal was required to determine the scope of the court's discretion under section 98(1) of the *Civil Procedure Act 2005* and Uniform Civil Procedure Rules 2005 (UCPR) 42.3, particularly concerning orders against non-parties and the definition of a "party" for costs purposes.

The court considered whether Mr Cunliffe could be treated as a "party" to the proceedings for the purpose of costs orders, despite not being formally joined to the record until a later date. It examined the distinction between a party on the record and a "real party" who plays an active role and has an interest in the litigation, referencing *Knight v FP Special Assets Ltd*. The court also assessed whether Mr Cunliffe's conduct after filing his submitting appearance exceeded the proper role of a submitting party, and whether the appellant had complied with court directions regarding the notification of mediation outcomes.

Ultimately, the Court of Appeal held that it would not be a just exercise of discretion to order Mr Cunliffe to pay the appellant's or the first respondent's costs of the appeal. The court found that Mr Cunliffe had not exceeded the role of a submitting party and that the appellant had failed in his costs application against him. Consequently, the appellant was ordered to pay Mr Cunliffe's costs of filing his submitting appearance and any subsequent costs incurred in that role, as well as the costs of the costs application. The first respondent was ordered to bear its own costs of the costs application. Save for these orders, no further costs were awarded between the appellant, the first respondent, and the seventh respondent.