Suresh v Jacon Industries Pty Ltd (No. 2) - [2005] NSWCA 270

NEW SOUTH WALES COURT OF APPEAL

CITATION: Suresh v Jacon Industries Pty Ltd (No. 2) [2005] NSWCA 270

FILE NUMBER(S):
40100/04

HEARING DATE(S): 22/06/05

JUDGMENT DATE: 17/08/2005

PARTIES:
Kumada Suresh v Jacon Industries Pty Ltd

JUDGMENT OF: Mason P Santow JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3677/00

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
R T McKeand QC, D W Elliott (Appellant)
D J Hooke (Respondent)

SOLICITORS:
W D Hunt & Associates (Appellant)
Nevill & Edwards (Respondent)

CATCHWORDS:
Costs - offer of compromise made under Part 39A r25 (6) of the District Court Rules - whether offer applies to costs of appeal - payments made under s151B of the Workers Compensation Act 1987 - possibility that such payments may exceed ultimate award at new trial in the District Court - whether sufficient reason to depart from normal rule of costs follow the event of the appeal

LEGISLATION CITED:
Workers Compensation Act 1987
Federal Proceedings (Costs) Act 1981 (Cth)
Supreme Court Act 1970 (NSW)
Suitors Fund Act 1951 (NSW)

DECISION:
Vary orders (2)(b) and (4) as set out in the judgment handed down on 22 June 2005 so that they now read
(2)(b) order that the costs of the proceedings in the District Court be in the discretion of the judge to whom the matter is remitted
(4) order that the Respondent pay the Appellant's costs of the appeal, including the costs of this further application to vary the orders, and to have a certificate under the Suitors Fund Act 1951 (NSW) if qualified

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40100/04
DC 3677/00
MASON P
SANTOW JA
BASTEN JA
17 August 2005

KUMADA SURESH v JACON INDUSTRIES PTY LTD (NO. 2)

Judgment

MASON P: I agree with Basten JA.
SANTOW JA: I agree with Basten JA.
BASTEN JA: On 22 June 2005 the Court handed down judgment in the appeal in this matter: see Kumada Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202. Pursuant to leave reserved in that judgment, the parties have now made further submissions in relation to the issue of costs.
The Appellant, the plaintiff in the Court below, was successful on the appeal in relation to liability and the proceedings were remitted to the District Court for assessment of damages. The plaintiff having lost there on the question of liability, the District Court did not proceed to assess the damages which might have been awarded in the event that the liability finding, as is now the case, were to be reversed. This Court proposed orders that the Respondent (the defendant in the Court below) pay the Appellant’s costs of the proceedings in the District Court and the costs of the appeal. The Respondent now seeks the following orders with respect to costs:
(1)Order that the costs of the proceedings in the District Court be in the discretion of the judge who determines damages.
(2)Order the Appellant to pay the Respondent’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 270
Decision Date: 17 August 2005

CaseChat Overview and Summary

This matter concerned an appeal before the Supreme Court of New South Wales, arising from proceedings in the District Court. The dispute involved an offer of compromise made under the District Court Rules and the implications of payments made under the *Workers Compensation Act 1987* (NSW) for the costs of the appeal.

The primary legal issues before the Court were whether an offer of compromise made in the District Court extended to the costs of an appeal, and whether the possibility of workers compensation payments exceeding any ultimate award at a new trial constituted a sufficient reason to depart from the usual rule that costs follow the event of the appeal.

The Court reasoned that it is usual for appellate courts to award costs of an appeal to follow the outcome of the appeal, and there was no reason to depart from this principle in the present case. The Court noted that the possibility of a retrial outcome being affected by various factors, including workers compensation payments, did not warrant making the costs order conditional on such future events. The Court also addressed the costs of a separate application to vary previous orders, finding that the respondent should bear the appellant's costs of that application as the grounds for success could have been raised in original submissions.

The Court ordered that the previous orders be varied. Specifically, the costs of the proceedings in the District Court were to be in the discretion of the judge to whom the matter was remitted. The respondent was ordered to pay the appellant's costs of the appeal, including the costs of the further application to vary the orders, and to have a certificate under the *Suitors Fund Act 1951* (NSW) if qualified.

Orders

Orders of the court

Vary orders (2)(b) and (4) as set out in the judgment handed down on 22 June 2005 so that they now read

(2)(b) order that the costs of the proceedings in the District Court be in the discretion of the judge to whom the matter is remitted

(4) order that the Respondent pay the Appellant's costs of the appeal, including the costs of this further application to vary the orders, and to have a certificate under the Suitors Fund Act 1951 (NSW) if qualified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Berrico Estate and AMC Caterers were unusual cases: it is at least unlikely that the present case will ultimately fall into the same category. The possibility that the Respondent would ultimately be successful, once the offer of compromise is taken into account, is a possibility which may arise in any case where a retrial is ordered. There is no authority for the proposition that, in such circumstances, the proper course is for this Court to make its order conditional on such an outcome not eventuating. It is usual for this Court, and indeed the High Court, to award costs of an appeal to follow the outcome of the appeal. There is no reason not to do so in the present case.Conclusions The orders of the Court should be varied so that, although the orders and judgment of the District Court are set aside, the costs in that Court are to be in the discretion of the judge on the further hearing. Accordingly order 2(b) should be varied to that effect. No variation is required to order 4, namely that the Respondent pay the Appellant’s costs of the appeal. However, there is a further question as to the costs of this separate application. The Respondent has been partly successful and partly unsuccessful. Nevertheless, the matter on which it was successful could readily have been dealt with in the written submissions on the appeal. In some cases, where the outcome of an appeal may be subject to a number of variables, it may be appropriate for one party to reserve its position in relation to the final orders to be made by the Court, pending the handing down of judgment. This was not such a case. The Respondent having failed to indicate in its original submissions the orders it sought if unsuccessful, it should bear the Appellant’s costs of the further application. Order 4 should be varied to make that conclusion explicit. Accordingly, I propose the following order:Vary orders (2)(b) and (4) as set out in the judgment handed down on 22 June 2005 so that they now read:(2)(b) order that the costs of the proceedings in the District Court be in the discretion of the judge to whom the matter is remitted;

Ratio Decidendi

Legal Principle Established

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