NEW SOUTH WALES COURT OF APPEAL
CITATION:
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
FILE NUMBER(S):
2009/298457
HEARING DATE(S):
On papers
JUDGMENT DATE:
15 September 2010
PARTIES:
Sydney Ferries (Appellant)
Stephen James Morton (First Respondent)
Transport Appeal Board (Second Respondent)
JUDGMENT OF:
Allsop P Basten JA Campbell JA
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
AR Moses SC; Y Shariff (Appellant)
D Cowan SC; DD Knoll (First Respondent)
Submitting appearance (Second Respondent)
SOLICITORS:
Sparke Helmore (Appellant)
Diamond Conway (First Respondent)
Crown Solicitor's Office (Second Respondent)
CATCHWORDS:
PROCEDURE - costs - application to have costs order set aside and varied under UCPR 36.16 - relevant principles for the award of costs - general rule that costs follow the event - insufficient basis for departing from general rule where appellant failed to disturb any significant aspect of the orders made in the court below
LEGISLATION CITED:
Uniform Civil Procedure Rules 2005
CATEGORY:
Consequential orders
CASES CITED:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Morton v Sydney Ferries Corporation [2009] NSWSC 341
Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453
Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128
Sydney Ferries v Morton [2010] NSWCA 156
Turkmani v Visvalingam (No 2) [2009] NSWCA 279
TEXTS CITED:
DECISION:
Appellant's Notice of Motion filed 20 July 2010 dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
2009/298457
ALLSOP P
BASTEN JA
CAMPBELL JA15 SEPEMBER 2010
SYDNEY FERRIES v STEPHEN JAMES MORTON (No 2)
Judgment
ALLSOP P: I agree with Campbell JA.
BASTEN JA: Although I was in dissent as to the outcome in this matter, I agree that the appropriate costs order was that the appellant pay the respondent’s costs.
That order followed on a conventional approach to the “event”, which was the outcome of the appeal. It followed that, absent some reason to order otherwise, the order made was in accordance with the Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
The circumstances in which the Court may order otherwise in respect of specific issues on which the party which succeeded in relation to the final order failed were recently identified by the Court in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38].
Where an appellant needs to succeed on a number of issues in order to obtain a favourable order, there should be no expectation that success on some issues will result in a reduction in the costs which it will have to pay because it was unsuccessful in the event. The discussion in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007]…
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- Case
- [2010] NSWCA 238
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine the appropriate costs order to be made, specifically whether the general rule that costs follow the event should be applied, or if there were sufficient grounds to depart from this rule. This involved considering the principles governing the award of costs in New South Wales, including the discretion of the court and the circumstances under which that discretion might be exercised to make an order other than that costs follow the event.
The Court applied the principles articulated in *James v Surf Road Nominees Pty Ltd (No 2)*, which affirmed that costs are generally in the discretion of the court, but subject to the rule that costs follow the event unless the court orders otherwise. This rule allows for the unsuccessful party to pay the successful party's costs, even if the successful party did not win on every issue. The court noted that where a matter involves multiple issues, a distinction is often drawn between clearly discrete issues and those that are inseparable. In this instance, the appellant (Sydney Ferries) had failed to disturb any significant aspect of the orders made in the court below, indicating that the general rule should apply.
The Appellant's Notice of Motion filed on 20 July 2010 was dismissed, and Sydney Ferries was ordered to pay Mr Morton's costs.
Orders
Orders of the court
Appellant's Notice of Motion filed 20 July 2010 dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In Morton v Sydney Ferries Corporation [2009] NSWSC 341 Rothman J had set aside a decision of the Transport Appeals Board. That decision of the Board had upheld a decision of Sydney Ferries to terminate the employment of Mr Morton as a ferry Master. Relevant principles for the award of costs were stated by Beazley, Tobias and McColl JJA in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]-[36]:“31Costs orders in the Supreme Court are governed by the provisions of s.76 of the Supreme Court Act 1997 and the Supreme Court Rules. Section 76 provides, relevantly that subject to the Act and the Rules, costs shall be in the discretion of the Court: s.76(1)(A). Part 52A r.11 acts as a limited proscription of the Court’s discretion conferred by s.76. Part 52A r.11 provides that, subject to Part 52A, the Court shall order that costs follow the event “except where it appears to the Court that some other order should be made as to the whole or any part of the costs”. 32The effect of Pt 52A r.11 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved. This was the subject of comment in Waters v. P C Henderson (Aust) Pty. Limited (unreported CA(NSW) Kirby P, Mahoney and Priestley JJA, 6 July 1994) where Mahoney JA said: “Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.”33Similarly, Toohey J made the following observations in Hughes v Western Australian Cricket Association (1986) ATPR 40-748: “1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.2.Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.3.A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.” (references omitted)34Where a matter involves multiple issues and the question before the court is whether it should make some other order as to costs other than the order that costs follow the event, a distinction is commonly drawn between cases which involve clearly discrete issues for determination, and those in which all issues are inseparable, or at least sufficiently linked, with respect to the overall disposition of a particular matter. In Permanent Trustee Aust Ltd v FAI General Insurance Co Ltd (unreported, NSWSC, 3 June 1998), Hodgson CJ in Eq noted that the obvious examples of a matter involving discrete issues is one where a plaintiff makes separate claims for different relief, or a claim by a plaintiff and a cross-claim by a defendant. Another example is where a respondent is successful in having an appeal against an earlier decision dismissed, but for reasons other than those raised in the respondent’s Notice of Contention. This is not to say that so-called “discrete issues”, for the purposes of apportioning costs, only exist in cases where there are separate claims made within a single matter. As Toohey J stated in the passage quoted at [33] above, it can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.35In Madden v Connell [2001] NSWSC 1051, Hamilton J referred to there being a “rule” that where there are “discrete issues and the time taken on each issue at the hearing can be identified or realistically estimated”, an order for costs may be made against the party which fails on such issues, or alternatively, that party may be deprived of its costs for that portion of the matter. In the Court’s opinion it is preferable not to speak in terms of “rules”. However, the underlying approach to the “rule” stated by his Honour may be an available approach to the exercise of the court’s discretion as to costs in a particular case, depending upon all of the circumstances. 36Where the court does exercise its discretion to apportion costs, the apportionment itself involves the exercise of discretion. As Gummow, French and Hill JJ recognised in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261: “Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.”