Mears v Sydney Anglican Schools Corporation (No 2)

THE COURT: On 1 July 2016 the Court heard (and dismissed) a motion by the applicants to call further evidence and heard (and dismissed) the applicants’ summons seeking leave to appeal. Orders were made accordingly. However, no order was made as to costs.

Subsequent to delivery of the judgment on 1 July 2016, each of the respondents has applied for an order that the applicants pay its and her costs (respectively) of the proceedings in this Court. Each respondent filed written submissions seeking to justify an order that costs follow the event.

Those submissions should be accepted, there being no reason why such orders should not be made. In their written responses to the applicants’ summary of argument each respondent sought costs in the event that leave was refused. The applicants’ summary did not identify any legitimate basis upon which an order for costs should not be made in favour of the respondents, if the application were to be refused.

There is one qualification to this conclusion. It follows from the fact that when the Court made orders, without making orders for costs, none of the three respondents, each represented by solicitors and counsel, asked for costs. Had they done so, as patently they should have, the additional cost of the further applications would not have been incurred. Accordingly the orders for costs should be extend to costs incurred up to and including 1 July 2016 (being the date of the leave hearing), but not thereafter.

The Court makes the following order, in addition to orders 1 and 2 made on 1 July 2016: