PREMIER WOODWORKING CO PTY LTD v SIGANISUCU SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS (1) AP, PRIESTLEY (1) JA AND HOPE (1) AJA 30 November 1989, 30 November 1989 [1989] NSWCA 250 COSTS — appeal without merit withdrawn and dismissed — order for costs on a solicitor and client basis. ORDERS The appeal is dismissed. The appellant is to pay the respondent's costs on a solicitor and client basis. Liberty to apply on seven days' notice for the purpose of amending the cord, if that should be necessary. Samuels AP, Priestley JA and Hope AJA When this matter was called on Mr Cranitch, for the appellant, withdrew the appeal, a course of action which was thoroughly well-founded in our opinion. There is no doubt therefore but that the appeal must be dismissed with costs. Mr Poulos, for the respondent, has submitted that we ought to make a special costs order, an order on an indemnity basis, a form of order which we are inclined to think has only a very frail footing in the costs rules. We were not, however, referred to authority, nor was the point fully argued. However, there are other forms of order which are somewhat more generous than the ordinary order as between party and party and we have therefore considered whether we should apply one of those. The conclusion depends, we think, upon whether this is a case in which we feel that any deficit between the costs in fact incurred and the costs recoverable on a party and party basis should be reduced as far as possible. That consideration depends upon the merits of the proceeding. Turning to the grounds of the supplementary notice of appeal, grounds one, two and three are totally without foundation because they seek to raise questions of fact, which are of course not the subject of appeal from the Compensation Court to the Court of Appeal. This might well be akin to the most obscure proposition of quantum physics, having regard to the difficulty with which it appears to penetrate the minds of some solicitors and counsel. The fourth ground of appeal, which is numbered five, has no merit because a very cursory glance through the evidence reveals the material which is said to be absent and it is plain that Professor Gandevia's opinion is well supported on the facts. The final ground of appeal might have been the subject of some rational argument but was, in our opinion, plainly doomed to early defeat. In those circumstances, we are of the opinion that a case has been made out for a special order for costs in order to protect the respondent or, since we understand the respondent has died, his estate, or whoever is representing him for the purposes of this litigation, from loss which might otherwise accrue because of the discrepancy between costs incurred and costs recovered. Although some of us, in addition, take the view that appeals of this character - that is to say, with these weaknesses - should be discouraged, we are not satisfied that making special orders for costs is the proper way of bringing about 2 UNREPORTED JUDGMENTS that result, or indeed that it is correct to say that it is part of the function of an appellate court to discourage appeals, it being its job merely to hear and determine. In the upshot we do not think that we can make an order for costs on an indemnity basis but we will make an order for costs on a solicitor and client basis. The orders are therefore that the appeal is dismissed. The appellant is to pay the respondent's costs on a solicitor and client basis. Liberty to apply on seven days' notice for the purpose of amending the record, if that should be necessary. Counsel for the Appellant: M Cranitch Solicitor for the Appellant: Hickson Lakeman and Holcombe Counsel for the Respondent: J Poulos Solicitor for the Respondent: PK Simpson and Co