Sydney Ferries v Morton (No 2)

The appeal concerned an application by Sydney Ferries to set aside and vary a costs order made in the Supreme Court of New South Wales. The dispute arose from an earlier decision by Rothman J, who had set aside a decision of the Transport Appeals Board that had upheld Sydney Ferries' termination of Mr Morton's employment as a ferry Master. The present proceedings involved an application by Sydney Ferries to the Court of Appeal concerning the costs of those earlier proceedings.

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.