Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182 Hearing dates: 20 July 2023 Decision date: 10 August 2023 Before: Leeming JA at [1]; Stern JA at [76]; Simpson AJA at [77] Decision: 1. Grant leave to Coal & Allied to amend its summons in terms of the draft supplied on 26 July 2023. 2. Set aside order 3 made by the District Court on 8 February 2023. 3. Direct the parties to file and serve, within 14 days of today, an agreed form of Certificate of Determination of Appeal which should issue in lieu of that issued by the District Court in accordance with these reasons, or in default of agreement, each side to file and serve within 14 days of today forms of certificates for which they contend and short submissions in support, with a view to any remaining dispute being resolved on the papers. 4. Coal & Allied to pay Mr Crossley's costs in the Court of Appeal. Catchwords: COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally was absurd and irrational and irreconcilable to purpose of fixing fair and reasonable costs – power of court to correct obvious typographical mistakes in legislation considered – consideration of meaning of "scanning" and "perusing" and "examining" documents STATUTORY CONSTRUCTION – correction of obvious typographical mistakes in legislation – nature of power to construe erroneous text so as to correct obvious drafting error – whether the fact that literal meaning of legislation be capable of being applied prevented error from being corrected – whether sufficient in order to construe legislation so as to correct a mistake that mistake be obvious and intended text obvious – whether necessary also for literal operation to be absurd and irrational and irreconcilable to purpose Legislation Cited: Interpretation Act 1987 (NSW), ss 3, 32 Legal Profession Amendment (Transitional Provisions) Regulation 2002 (NSW), item 4 of Sch 1 Legal Profession Regulation 1994 (NSW), Pt 1 of Sch 2 Legal Profession Regulation 2002 (NSW), Pt 1 of Sch 2 Legal Profession Regulation 2005 (NSW), Pt 1 of Sch 3 Legal Profession Uniform Law Application Act 2014 (NSW), ss 59, 87, 89 Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 25, Pt 1 of Sch 2 Rules of the Supreme Court (Costs) 1915 (NSW), r 36 Subordinate Legislation Act 1989 (NSW), ss 10, 11 Supreme Court Act 1970 (NSW), ss 48, 69 Workers Compensation Regulation 2016 (NSW), cl 131 Cases Cited: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Amirbeaggi v EB [2023] NSWCA 108 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48 Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Freestone Auto Sales Pty Ltd v Musulin [2015] NSWCA 160 Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; [2000] UKHL 15 Lindner v Wright (1976) 14 ALR 105 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 Morishita v Township of Richmond (1990) 67 DLR (4th) 609 New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71; [2003] NSWCA 245 Ngumi v Attorney General (The Bahamas) [2023] UKPC 12 Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 R v Wilcock (1845) 7 QB 317; 115 ER 509 Richards v McBride (1881) 8 QBD 119 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 Texts Cited: A Saddington, Taxation of Costs Between Parties (1919, Law Book Co) J Ahern, A Weingart and M Johnson, Legal Costs Handbook (1995, LBC Information Services) J White, Legal Costing (1988, Blackstone Press) Quick on Costs (Thomson Reuters, vol 1) R Sullivan, Statutory Interpretation (2016, 3rd ed, Irwin Law) W Bannehr and A Porter, Guide to the Preparation, Delivery and Taxation of Bills of Costs (12th ed, 1921, Waterlow and Sons) W Summerhays and T Toogood, Precedents of Bills of Costs (2nd ed, 1877, Stevens & Sons, London) Category: Principal judgment Parties: Coal & Allied Operations Pty Ltd (Plaintiff) David Malcolm Crossley (First Defendant) District Court of NSW (Second Defendant) Representation: Counsel: B Kelleher SC and N Compton (Plaintiff) T Lynch SC and M Fraser (First Defendant)