Marrickville Municipal Council v Moustafa (No 2)

Marrickville Municipal Council (the appellant) sought leave to appeal from interlocutory orders made by the primary judge in proceedings against Mr. Moustafa (the respondent). The NSW Court of Appeal was required to determine whether to grant leave to appeal and, if so, on what conditions.

The central legal issue before the Court of Appeal was the appropriate conditions to impose on the grant of leave to appeal, particularly in circumstances where the appellant sought to pursue a "test case" that was of interest only to itself, while the respondent was a litigant for the first and potentially last time. The Court also considered the duties of counsel in ensuring that costs matters could be finally disposed of when judgment was reserved.

The Court noted that while it had the power to grant leave to appeal on conditions, including the payment of the respondent's costs in any event, such conditions should be imposed judiciously. In this instance, the Court found that the appellant's status as a frequent litigant and the respondent's position as a first-time litigant weighed against imposing a condition that would place an undue burden on the respondent. The Court also emphasised the importance of counsel's duty to assist the court in resolving costs issues efficiently.

The Court of Appeal ordered that leave to appeal be granted, but that the condition requiring the appellant to pay the respondent's costs in any event be removed. The Court instead ordered that the costs of the application for leave to appeal be costs in the appeal.