Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2)

[2013] NSWCA 39

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2) [2013] NSWCA 39

Hearing dates:

25 February 2013

Decision date:

25 February 2013

Before:

Allsop P at [1], [8], [13], [21]
Meagher JA at [6], [11], [19]
Ward JA at [7], [12], [20]

Decision:

Notice of Motion filed 14 February 2013 by Ms Blackburn

1. The orders of the Court of 11 February 2013 be amended to insert order 5A after order 5 in the following form:

"The second respondent (State of New South Wales) pay one third of the appellant's (Ms Blackburn's) costs of the appeal."

2. Order that the State of New South Wales pay Ms Blackburn's costs of the motion filed on 14 February 2013.

Notice of Motion filed 15 February 2013 by the State of New South Wales

1. Vary order B(4) of the orders of the Court made on 11 February 2013 by rescinding order B(4) and in its place order as follows:

"B(4). Dismiss the appeal with costs on the following basis:

(a) Mr Withyman pay the costs of the State of New South Wales on an ordinary basis up to and including 28 July 2011; and

(b) Mr Withyman pay the costs of the State of New South Wales on an indemnity basis thereafter."

2. Order that Mr Withyman pay the State of New South Wales' costs of the motion filed 15 February 2013.

Notice of Motion filed by Mr Withyman on or about 20 February 2013

1. Vary order C made by the Court on 11 February 2013 by adding after the existing order C the following:

"The cross-applicant (State of New South Wales) pay the first cross-respondent's (Mr Withyman's) costs of the application for leave to appeal."

2. Order that the State of New South Wales pay Mr Withyman's costs of this motion.

[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 - no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

David Morris Withyman (by his tutor Glenda Ruth Withyman) (Appellant in 2008/317901; First Respondent in 2011/219978; First Cross-Respondent)
Anna Lucinda Blackburn (Second Respondent in 2008/317901; Appellant in 2011/219978; Second Cross-Respondent)
State of New South Wales (First Respondent in 2008/317901; Second Respondent in 2011/219978; Cross-Appellant)

Representation:

S Norton SC and R J A Sergi (Withyman)
J M Morris (Blackburn)
A R Moses SC and A B Parker (State of New South Wales)
Kenny Spring Solicitors (Withyman)
A R Connolly & Co (Blackburn)
Hicksons Lawyers (State of New South Wales)

File Number(s):

2008/317901; 2011/219978

 Decision under appeal 

Citation:

[2010] NSWDC 186

Date of Decision:

2010-09-01 00:00:00

Before:

Elkaim SC DCJ

File Number(s):

2008/317901

Judgment

1. ALLSOP P: There are three applications before the Court brought by notice of motion to deal with orders for costs in this matter. The Court proposes to deal with the matter now, including reasons. The reasons today should be read with the helpful written submissions that were filed by all parties, contained in the application book which was filed on 22 February 2013.

1. The first motion is the motion brought by Ms Blackburn seeking costs against the State. The basis of that application was that the State had contributed to the error made by the primary judge about the limitation point being the subject of an issue estoppel. That matter alone, for my part, would not have been sufficient. However, in this Court, the State abandoned its application for leave to appeal, which is the subject of the third motion, and took a position beyond one of merely standing by a concession made at trial.

1. The State argued the point that the issue estoppel existed, partly from a desire to assist the Court by a contradictor on the point but also partly to protect its own position. In so doing, and deliberately arguing a point in the appeal, it exposed itself to a liability as to costs. It is appropriate, however, that an order be made for partial costs - that is, only a proportion of the appeal - because there is no other basis, in my view, for making the State liable for the totality of the costs of the appeal. It was primarily a case by Ms Blackburn against Mr Withyman. In those circumstances it is just that a proportionate costs order be made. Senior counsel for the State accepts thirty per cent. In my view, the order that should be made should reflect a third of the costs.

1. Therefore the order that I would make in relation to that notice of motion would be that the orders of the Court of 11 February 2013 be amended to insert order 5A after order 5 in the following form:

"The second respondent (State of New South Wales) pay one third of the appellant's (Ms Blackburn's) costs of the appeal."

1. I would order that the State of New South Wales pay Ms Blackburn's costs of the motion filed 14 February 2013.

1. MEAGHER JA: In relation to that motion I agree with the orders proposed by the President for the reasons given by his Honour.

1. WARD JA: I also agree with the orders proposed by the President for those reasons.

1. ALLSOP P: The orders of the Court on the first motion of Ms Blackburn are as I have proposed.

1. As to the second motion, this was a motion brought by the State against Mr Withyman by notice of motion filed on 15 February 2013 seeking a variation of order B4 made on 11 February 2013 to take into account an offer of compromise made under the Rules. The only issue that arose for possible consideration was the fact that the letter, being the offer of compromise, sought the dismissal of the proceedings by Mr Withyman and each party bearing its, her and his own costs. There is a live issue in this Court as to the effect of Uniform Civil Procedure Rules 2005 (NSW), r 20.26(2) and the inclusion of a reference to the disposition of costs in an offer of compromise. That controversy would not arise, however, if the words of that rule (being "a verdict for the defendant") were read substantively to include the dismissal of the proceedings. In my view, the rule should be so read as a matter of commonsense and practicality. The matter was effectively, and if I may respectfully say so, properly conceded by Mr Sergi.

1. Therefore I would make orders in accordance with orders 1 and 2 of the notice of motion filed 15 February 2013.

1. MEAGHER JA: Again I agree with the orders proposed by the President for the reasons he has given.

1. WARD JA: I also agree with the orders proposed by the President for the reasons given by his Honour.

1. ALLSOP P: Therefore the orders in relation to the second motion are:

(1) Vary order B4 of the judgment of the Court on 11 February 2013 by rescinding order B4 and in its place ordering the following.

"Dismiss the appeal with costs on the following basis:

(a) Mr Withyman pay the costs of the State of New South Wales on an ordinary basis up to and including 28 July 2011.

(b) Mr Withyman pay the costs of the State of New South Wales on an indemnity basis thereafter."

(2) Mr Withyman pay the State of New South Wales' costs of the motion.

1. In relation to the third motion the State sought leave to appeal from the orders made by Judge McLoughlin. The basis of the leave was misdirected. It was not the point raised and won by Ms Blackburn but rather, if I may respectfully say so, a misguided application for which there was not proper material before the Court. It is proper that Mr Withyman have his costs of that application for leave to crossappeal which was abandoned.

1. Therefore order C made by the Court on 11 February 2013 shall be varied as follows, by adding after the existing order C:

"The cross-applicant (the State of New South Wales) pay the first crossrespondent's (Mr Withyman's) costs of the application for leave to appeal."

1. I would order the State to pay Mr Withyman's costs of this motion.

1. MEAGHER JA: I agree with the orders proposed by the President for the reasons he gives.

1. WARD JA: I also agree with the orders proposed by the President for the reasons given by his Honour.

1. ALLSOP P: The orders will be as I proposed.

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Amendments

28 February 2013 - typographical error

Amended paragraphs: Judgment title

Decision last updated: 08 March 2013