Hooker v Gilling (No 2)

Case [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…

Continue reading Hooker v Gilling (No 2)

Sign in free to access the full text

Details
AGLC
Hooker v Gilling (No 2) [2007] NSWCA 214
Case
[2007] NSWCA 214
Decision Date

CaseChat Overview and Summary

The appeal concerned the costs of proceedings between Hooker and Gilling. The appellant, Hooker, had been successful in reversing the orders of the lower court on appeal. However, this success was achieved through significant indulgence granted by the Court of Appeal. The primary dispute revolved around whether Hooker should be considered a "successful party" for the purposes of Uniform Civil Procedure Rules 2005 (UCPR) rule 42.1, which typically dictates cost orders.

The Court of Appeal was required to determine two principal issues. Firstly, whether the appellant, despite achieving a reversal of the lower court's orders, qualified as a "successful party" under UCPR 42.1, thereby entitling them to an award of costs. Secondly, the Court had to consider whether the appellant's legal representatives should be personally liable for the costs of the appeal, pursuant to section 99(1) of the Civil Procedure Act 2005.

The Court held that the appellant was not a "successful party" for the purposes of UCPR 42.1. It reasoned that the success was a result of considerable indulgence from the Court, indicating that the usual rule of awarding costs to the successful party could be departed from in these circumstances. Regarding the second issue, the Court found that the conduct of the appellant's legal representatives did not meet the threshold required by section 99(1) of the Civil Procedure Act 2005 to warrant personal liability for costs.

Consequently, the Court confirmed the orders made on 1 May 2007.

Orders

Orders of the court

Confirm the orders of the Court made on 1 May 2007.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.