Workcover Authority of New South Wales v Wightman & Ors

THE COURT : This appeal was heard by the Court on 4 September 2001 and judgment delivered on 11 October 2001. The appeal was dismissed and the appellant ordered to pay the costs of the first respondent. Since there was a dispute as to costs between the appellant and second respondent, the court was asked not to rule on the issue until after the judgment had been published. When publishing the judgment on 11 October 2001 the court directed written submissions be lodged by the parties and indicated that the court would determine the matter on the papers.

The order sought by the appellant is that the appellant pay the second respondent’s costs of the appeal up to 1 May 2001 but thereafter the appellant and the second respondent pay their own costs. The second respondent submits that the appellant should pay its costs of the appeal.

The appellant says that on 1 May 2001 it served the second respondent with a supplementary Notice of Appeal which indicated that no order was sought against the second respondent. Thereafter, there was no live issue raised by it as against the second respondent.

The second respondent submits however that after 1 May 2001 the appellant continued to treat it as a party, for example by printing and serving Red Appeal Books and Orange Books (containing the submissions of the parties). The appellant took no step to discontinue the appeal against the second respondent. Further, at a callover before the Registrar on 3 May 2001, when the hearing date was allocated and directions given regarding submissions, no indication was given by the appellant that it was not proceeding against the second respondent.

We accept the submission made on behalf of the second respondent. Indeed, it appears that it was not until 3 September 2001, the day before the hearing of the appeal, that the appellant confirmed to the second respondent that no orders would be sought against it.

As Mr King SC says on behalf of the second respondent, in the circumstances of the multi-party litigation, it would have been a brave second respondent not to turn up at the hearing of the appeal.

In our opinion, costs should follow the event. There was no disentitling conduct on the part of the second respondent after 1 May 2001 to vary the usual order as to costs.

Accordingly, we order the appellant to pay the second respondent’s costs of the appeal including the submissions on costs.