Mahenthirarasa v State Rail Authority of New South Wales (No 2)

In *Mahenthirarasa v State Rail Authority of New South Wales (No 2)*, the Court of Appeal of New South Wales considered an application for costs following earlier judicial review proceedings. The applicant, Mr. Mahenthirarasa, had been successful in his appeal against the State Rail Authority of New South Wales (SRA). The SRA had submitted "save as to costs" in relation to the appeal, indicating a willingness to have the court determine the costs order.

The central legal issue before the Court of Appeal was whether the SRA, as a state-owned corporation and part of the executive government, was required to act as a model litigant, and if so, whether this principle, along with the general rule that costs follow the event, justified ordering the SRA to pay the applicant's costs. The court also had to consider the application of section 98 of the *Civil Procedure Act 2004* (NSW) and rules 6.11 and 42.1 of the *Uniform Civil Procedure Rules 2005* (NSW) in determining the appropriate costs order.

The Court of Appeal reasoned that while the SRA was a state-owned corporation, the "model litigant" principles, which generally require government entities to act with fairness, openness, and consistency, were applicable. Given the SRA's role and the nature of the proceedings, the court found it just and reasonable for the SRA to bear the costs. The court noted that the SRA's submission of "save as to costs" did not absolve it from the general principles governing costs.

Consequently, the Court of Appeal ordered that the previous costs orders made by the primary judge be set aside. The court further ordered that the first respondent, the State Rail Authority, pay the appellant's costs of the proceedings in the Common Law Division and in the Court of Appeal on the usual basis.