Mears v Sydney Anglican Schools Corporation (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mears v Sydney Anglican Schools Corporation (No 2) [2016] NSWCA 215
Hearing dates: On the papers
Decision date: 19 August 2016
Before: Basten JA; Sackville AJA
Decision:
In addition to orders 1 and 2 made on 1 July 2016:
(3) Order that the applicants pay the costs of each respondent in this Court up to and including 1 July 2016.
Catchwords: COSTS – leave to appeal – omitted order – costs to follow the event – no issue of principle
Category: Costs
Parties: Grant Mears (First Applicant)
Gloria Mears (Second Applicant)
Sydney Anglican Schools Corporation t/as Roseville College (First Respondent)
State of New South Wales (Second Respondent)
Helen Daphne Firbank (Third Respondent)
Representation:
Counsel:
Mr F F F Salama (First Respondent)
Mr G J Sarginson (Second Respondent)
Ms C O Gleeson (Third Respondent)
Solicitors:
Applicants self-represented
AM Legal Solutions Pty Ltd (First Respondent)
Lea Armstrong, Crown Solicitor NSW (Second Respondent)
Mervyn Finlay Thorburn & Marshall (Third Respondent)

File Number(s): 2015/378516
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348

Date of Decision:

26 November 2015

Before:

Taylor SC DCJ

File Number(s):

2007/308335

Judgment

THE COURT: On 1 July 2016 the Court heard (and dismissed) a motion by the applicants to call further evidence and heard (and dismissed) the applicants’ summons seeking leave to appeal. Orders were made accordingly. However, no order was made as to costs.
Subsequent to delivery of the judgment on 1 July 2016, each of the respondents has applied for an order that the applicants pay its and her costs (respectively) of the proceedings in this Court. Each respondent filed written submissions seeking to justify an order that costs follow the event.
Those submissions should be accepted, there being no reason why such orders should not be made. In their written responses to the applicants’ summary of argument each respondent sought costs in the event that leave was refused. The applicants’ summary did not identify any legitimate basis upon which an order for costs should not be made in favour of the respondents, if the application were to be refused.
There is one qualification to this conclusion. It follows from the fact that when the Court made orders, without making orders for costs, none of the three respondents, each represented by solicitors and counsel, asked for costs. Had they done so, as patently they should have, the additional cost of the further applications would not have been incurred. Accordingly the orders for costs should be extend to costs incurred up to and including 1 July 2016 (being the date of the leave hearing), but not thereafter.
The Court makes the following order, in addition to orders 1 and 2 made on 1 July 2016:

(3) Order that the applicants pay the costs of each respondent in this Court up to and including 1 July 2016.

**********

The applicants, Mears and others, sought leave to appeal against an order made by the Supreme Court of New South Wales concerning costs. The respondents were the Sydney Anglican Schools Corporation and others. The dispute revolved around an omitted order from a previous judgment, specifically regarding the costs of the proceedings up to a certain date.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal against the costs order. This involved considering whether there was an "issue of principle" that warranted appellate intervention, particularly in circumstances where the costs order was sought to be corrected due to an alleged omission.

Basten JA and Sackville AJA determined that there was no issue of principle involved in the application for leave to appeal. They reasoned that the application was essentially seeking to rectify an alleged oversight in the original costs order, rather than raising a novel or significant legal question. Consequently, leave to appeal was refused.

The Court ordered that the applicants pay the costs of each respondent in the Court of Appeal up to and including 1 July 2016.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Mears v Sydney Anglican Schools Corporation (No 2) [2016] NSWCA 215
Hearing dates:	On the papers
Decision date:	19 August 2016
Before:	Basten JA; Sackville AJA
Decision:	In addition to orders 1 and 2 made on 1 July 2016: (3) Order that the applicants pay the costs of each respondent in this Court up to and including 1 July 2016.
Catchwords:	COSTS – leave to appeal – omitted order – costs to follow the event – no issue of principle
Category:	Costs
Parties:	Grant Mears (First Applicant) Gloria Mears (Second Applicant) Sydney Anglican Schools Corporation t/as Roseville College (First Respondent) State of New South Wales (Second Respondent) Helen Daphne Firbank (Third Respondent)
Representation:	Counsel: Mr F F F Salama (First Respondent) Mr G J Sarginson (Second Respondent) Ms C O Gleeson (Third Respondent) Solicitors: Applicants self-represented AM Legal Solutions Pty Ltd (First Respondent) Lea Armstrong, Crown Solicitor NSW (Second Respondent) Mervyn Finlay Thorburn & Marshall (Third Respondent)
File Number(s):	2015/378516
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348 Date of Decision: 26 November 2015 Before: Taylor SC DCJ File Number(s): 2007/308335