BARBARO v GAMBACORTA; GAMBACORTA v CALABRIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MCHUGH and CLARKE JJA 6 May 1988 [1988] NSWCA 12 Priestley, McHugh and Clarke JJA On 26 November 1987 the court indicated that it proposed to dismiss these appeals. Priestley JA ended his reasons (with which McHugh and Clarke JJA agreed) by saying: "No argument was put to the court on costs, presumably because it was expected that costs would follow the event, as in my opinion they should. Although initially informally, Mr Calabria was present when the case was opened in this court because of notification by Mr Barbaro. The whole of the court's time was taken up with the Unsuccessful arguments of Mr Barbaro. On the footing that this court has the same power under s76 of the Supreme Court Act 1970 as the English High Court and Court of Appeal have under s51(1) of their Supreme Court Act 1981 (see Aiden Shipping Ltd v Interbulk Ltd [1986] AC 967) I would propose that both appeals be dismissed with costs and that in Mr Barbaro's appeal Mr Gambacorta's costs should include any costs paid by him to Mr Calabria in Mr Gambacorta's appeal against Mr Calabria. In case Mr Barbaro should wish to make submissions on the power of the court to make such orders I suggest that the court not today formally pronounce any orders but grant leave to Mr Barbaro to file written submissions with the Registrar within seven days from today, should he be so advised. The appeals can be finally disposed of thereafter." Thereafter written submissions on costs were filed for Mr Barbaro, which were answered by his opponents. Mr Barbaro's submissions did not deal with the power of the court which was the particular subject upon which submissions were sought. In these circumstances it seems appropriate to assume that the court's power to make the order suggested is not disputed. As we read the submissions of the appellant the only matter of real consequence urged against the making of the order is that Mr Gambacorta only belatedly sought to appeal against the Calabria judgment and should be regarded as having initially decided against that course because if the blood pressure issue had been decided in favour of Mr Barbaro it would have been necessary to reduce the award against Mr Calabria also. We appreciate this point but on the other hand the major thrust of Mr Barbaro's argument was that the other defendant should have been found responsible for a greater proportion of the damage and consequently Mr Barbaro should have been liable for a smaller judgment sum. For this reason we think that it was necessary for Mr Gambacorta to have the other defendant before the court in order to avoid the prospect of having the award against Mr Barbaro cut down and no Corresponding increase in the award against Mr Calabria. Looking at the matter broadly we think that Mr Gambacorta would have realised this at some stage and sought to join the third party. The only question which arises in our view is whether the belated action on the part of Mr Gambacorta in taking that course should deprive him of protection qua Costs. For 2 UNREPORTED JUDGMENTS instance we think that if he had done it at the outset he would Undoubtedly have been entitled to an order of the nature proposed. In the ultimate we do not think that his late decision should lead us to decline to make an order which effects substantial justice between the parties. Our final orders are therefore as follows: 1. Appeals in R75 and R77 of 1983 dismissed with Costs. 2. Costs of respondent in appeal in R77 to include any Costs paid by that respondent as appellant in the appeal in R75 to the respondent in that appeal in R75