Hooker v Gilling (No 2)

[2007] NSWCA 214

New South Wales

Court of Appeal

CITATION:	Hooker v Gilling (No 2) [2007] NSWCA 214
HEARING DATE(S):	On the papers
JUDGMENT DATE:	16 August 2007
JUDGMENT OF:	Ipp JA at 1; McColl JA at 2; Basten JA at 39
DECISION:	Confirm the orders of the Court made on 1 May 2007.
CATCHWORDS:	COSTS – appeal – appellant successful on appeal in reversing lower court orders – success due to considerable indulgence by Court of Appeal – whether appellant “successful” for the purposes of UCPR 42.1 – held no – court entitled to depart from “usual” rule – orders made on 1 May 2007 confirmed. COSTS – s 99(1) Civil Procedure Act 2005 – whether appellant’s legal representatives should pay costs of appeal – conduct did not reach threshold contemplated by s 99(1).
LEGISLATION CITED:	Civil Procedure Act 2005 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 District Court Rules 1973 Supreme Court Rules 1970
CASES CITED:	Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37 Fordyce v Fordham & Anor [2006] NSWCA 274 Furber v Stacey & Anor [2005] NSWCA 242 Hooker v Gilling [2007] NSWCA 99 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 Oshlack v Richmond River Council [1988] HCA 11; (1998) 193 CLR 72
PARTIES:	David Price Hooker - Appellant Glenys Joy Gilling - Respondent
FILE NUMBER(S):	CA 40338 of 2006
COUNSEL:	J G Gazzi - Appellant Respondent in person
SOLICITORS:	Herbert Weller - Appellant Respondent in person
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4627/05
LOWER COURT JUDICIAL OFFICER:	O'Toole DCJ
LOWER COURT DATE OF DECISION:	26 May 2006

- 1 -

CA 40338/06
DC 4627/05

IPP JA
McCOLL JA
BASTEN JA

Thursday 16 August 2007
HOOKER v GILLING (No 2)

Judgment

1 IPP JA: I agree with McColl JA.

2 McCOLL JA: The Court delivered judgment in this matter on 1 May 2007: Hooker v Gilling [2007] NSWCA 99 (“Hooker No 1”). The background can be gleaned from that judgment. This judgment deals with the appropriate costs orders in relation to the appeal and the hearing at first instance.

3 In Hooker No 1, I said (with the concurrence of Ipp and Basten JJA):

“69. The question of the costs of the application has occasioned me some difficulty. The claimant has succeeded but only because of considerable indulgence on the part of the Court. However the opponent understood before the primary judge, in my view, that the MAC Act did not apply to a claim based on a progressive injury (Transcript, 25/5/06 at pp 47 – 48). While, as Allsop J said in White v Overland , the opponent’s legal representatives did not owe any duty to the claimant, they, too, owed a duty to the Court to ensure it discharged its functions in accordance with the overriding purpose. As I have indicated the progressive…