Jones v Trad (No 3)

Case [2013] NSWCA 463

Court of Appeal

New South Wales
Case Title: Jones v Trad (No 3)
Medium Neutral Citation: [2013] NSWCA 463
Hearing Date(s): On the papers
Decision Date: 18 December 2013
Before: Ward JA at [1]
Emmett JA at [62]
Gleeson JA at [69]
Decision:

1. Respondent to pay the appellants' costs of the appeal on an ordinary basis, other than the appellants' costs of the application by the appellants for a redaction of certain portions of the published reasons.

2. Set aside the Appeal Panel's costs order of 18 March 2013 and remit the question of costs on the Appeal Proceedings to the Appeal Panel to determine, having regard to the outcome of this appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROCEDURE - costs - where the appellants succeeded on only a limited number of the grounds of appeal that they had raised - where multiple issues raised - where substantive case not finally decided - whether costs of the appeal should follow the event

PROCEDURE - costs - where application for indemnity costs on the basis of a rejected offer of settlement - whether failure to accept the offer in all the circumstances warrants departure from the ordinary rule as to costs

PROCEDURE - costs - whether leave required on the issue of costs pursuant to 119(1A) Administrative Decisions Tribunal Act, 1997 (NSW)
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW)
Anti-Discrimination Act 1977 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344
Commonwealth of Australia v Gretton [2008] NSWCA 117
Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379; [1983] 3 All ER 153
Coote v Kelly [2013] NSWCA 357
Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
Jones v Trad [2013] NSWCA 389
Leichhardt Municipal Council v Green [2004] NSWCA 341
Marshall v Prescott (No 2) [2013] NSWCA 292
McGuirk v University of NSW & Anor [2010] NSWCA 1
Old v McInnis and Hodgkinson [2011] NSWCA 410
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706
Trad v Jones (No.…

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AGLC
Jones v Trad (No 3) [2013] NSWCA 463
Case
[2013] NSWCA 463
Decision Date

CaseChat Overview and Summary

In Jones v Trad (No 3), the appellants, having succeeded on only a limited number of grounds of appeal in a matter where the substantive case was not yet finally decided, sought orders regarding the costs of the appeal. The respondent also sought indemnity costs based on a rejected offer of settlement. The court was required to determine whether the costs of the appeal should follow the event, whether the failure to accept the settlement offer warranted a departure from the ordinary rule as to costs, and whether leave was required to address the issue of costs under s 119(1A) of the *Administrative Decisions Tribunal Act 1997* (NSW).

The court reasoned that while the appellants had achieved some success, it was not a complete victory, and the substantive proceedings remained unresolved. Consequently, the ordinary rule that costs follow the event was applied, but with a modification to reflect the limited success. Regarding the offer of settlement, the court found that the circumstances did not justify an award of indemnity costs against the appellants. The court also determined that leave was not required to address the costs of the appeal under the relevant legislative provision.

The court ordered that the respondent pay the appellants' costs of the appeal on an ordinary basis, excluding the costs associated with the appellants' application for redaction of published reasons. Furthermore, the Appeal Panel's prior costs order of 18 March 2013 was set aside, and the question of costs for the Appeal Proceedings was remitted to the Appeal Panel for determination, taking into account the outcome of the appeal.

Orders

Orders of the court

1. Respondent to pay the appellants' costs of the appeal on an ordinary basis, other than the appellants' costs of the application by the appellants for a redaction of certain portions of the published reasons.

2. Set aside the Appeal Panel's costs order of 18 March 2013 and remit the question of costs on the Appeal Proceedings to the Appeal Panel to determine, having regard to the outcome of this appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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