Marshall v Prescott (No 2)

[2013] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Marshall v Prescott (No 2) [2013] NSWCA 292

Hearing dates:

On the papers

Decision date:

04 September 2013

Before:

McColl JA; Barrett JA; Ward JA

Decision:

1. Set aside Order (4) made by Bellew J on 29 August 2012 and in lieu note that there is no order as to the costs of the claims for privilege determined by his Honour.

2. Order that the costs of the second, third and fourth respondents of and incidental to the appellants' application for leave to appeal against costs orders made by Bellew J on 29 August 2012 be paid by the appellants.

3. Note that there is otherwise no order as to costs in respect of the proceedings in this Court.

[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:

COSTS - review of costs order at first instance where appeal allowed in part - costs of appeal where appeal allowed in part only - no matter of principle

Cases Cited:

James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Marshall v Prescott [2013] NSWCA 152

Category:

Consequential orders

Parties:

Margaret Lesley Marshall (First Appellant)
Kim Neil Marshall (Second Appellant)
Michael Prescott (First Respondent)
GIO General Limited (Second Respondent)
GIO Workers Compensation (NSW) Limited (Third Respondent)
The Partners TurksLegal - (Fourth Respondent)

Representation:

Counsel:
C J Bevan/E W Young (Appellants)
D J Russell SC (Second, Third and Fourth Respondents)
Solicitors:
Turner Freeman Lawyers (Appellants
TurksLegal (Second, Third and Fourth Respondents)

File Number(s):

CA 2012/287040

 Decision under appeal 

Citation:

[2012] NSWSC 992

Date of Decision:

2012-08-29 00:00:00

Before:

Bellew J

File Number(s):

SC 2009/297404

Judgment

1. THE COURT: This matter was decided on 6 June 2013: Marshall v Prescott [2013] NSWCA 152. The active parties were the appellants and the second, third and fourth respondents ("the respondents"). The outcome was that:

(a) the appellants were refused leave to appeal in respect of the costs orders made by the primary judge (Bellew J);

(b) the appellants were unsuccessful in their challenge to the judge's decision on privilege questions as they related to subpoenaed documents 13, 14, 15 and 17; and

(c) the appellants were successful in their challenge to the primary judge's order upholding privilege claims in respect of subpoenaed document 20.

1. It is now necessary to decide:

(a) whether the costs order made by the primary judge should be varied in light of the result on appeal; and

(b) what order should be made as to the costs in this Court.

1. In accordance with directions, written submissions on costs were filed by the appellants and the respondents.

1. The…