Howard v Telstra Corporation Ltd

The appeal concerned an application by Roger Howard (the plaintiff) against Telstra Corporation Ltd (the defendant) following an arbitration. The primary dispute revolved around an adverse costs order made against the plaintiff after the arbitration, which the plaintiff sought to set aside on appeal. The appeal was heard by Santow JA, Young CJ in Eq, and Davies AJA.

The central legal issues before the court were whether the trial judge erred in exercising their discretion regarding costs, and whether there was conduct on the part of the plaintiff that justified departing from the general rule that costs follow the event. Specifically, the court considered the implications of the plaintiff's failure to call witnesses at the arbitration on the fairness and justice of the costs outcome.

The Court of Appeal found that the trial judge had erred in their assessment of costs. They reasoned that while the general rule is that costs follow the event, a court has discretion to depart from this rule where it is fair and just to do so. The failure to call witnesses at the arbitration, while a factor, did not, in the circumstances, warrant the entirety of the adverse costs order against the plaintiff. The court determined that a more equitable distribution of costs was required.

Consequently, the Court of Appeal set aside the costs order made below. In its place, the plaintiff was ordered to pay the costs of the arbitration, while the defendant was ordered to pay the costs of the proceedings in the District Court. The parties were directed to abide their own costs of the appeal.