Dasreef Pty Limited v Hawchar (No 2)

THE COURT: On 6 July 2010, the Court made orders allowing the appeal in part: Dasreef Pty Limited v Hawchar [2010] NSWCA 154. An order was made to remit the question of costs of the hearing before the Dust Diseases Tribunal to the Tribunal for reconsideration. Although the event by reference to which it might be argued costs should be assessed is the partial success on appeal, that success of the appellant needs to be understood in its context. As a reading of the reasons makes clear the appellant had extremely limited success (only on the costs appeal) and failed in the substantive challenges to the judgment of the Dust Diseases Tribunal.

The error of principle identified in the main judgment being the approach of the Tribunal to the question of issue estoppel was effectively conceded by counsel for Mr Hawchar. The lack of clarity in relation to the capping order in relation to costs persuaded the Court to remit the matter of costs.

All in all, a just and fair attribution of costs for the appeal would be that the appellant pay 85 per cent of the respondent’s costs of the appeal. This would reflect fairly the very limited success of the appellant and the time taken in preparation for, and argument on, the appeal.

The order as to the costs of the appeal will be that the appellant pay 85 per cent of the costs of the respondent.