WENTWORTH v RARES [No 1] [1990] NSWCA 184

WENTWORTH v RARES [No 1]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and CLARKE JJA and HoPE AJA 13 December 1990

[1990] NSWCA 184

Priestley JA Miss Wentworth has argued that she should have leave to appeal inregard to the costs order made by Waddell J upon his dismissal of the contempt proceedings that she brought against Mr Rares. The matter has been argued on the footing that notwithstanding the court's decision that it has no jurisdiction to entertain an appeal against the acquittal of Mr Rares in the sense I used earlier today of the contempt charge, that it does have jurisdiction to grant leave and entertain an appeal against the costs order.

That question is a difficult one as it seems to the court at the moment and the assumption being made that the power does exist is an assumption only and not a decision on the point.

In order to obtain leave against the making of a costs order, a litigant must show that some error of principle or misunderstanding of fact has been made by the trial judge. In the case of an application for leave to appeal in regard to a costs order, as distinct from other kinds of orders of an interlocutory nature, because the matter is regarded as one of practice, the court much more rarely grants leave than in cases not strictly involving practice questions. Further, in leave applications of this kind the court does not usually give reasons or, at most, confines itself to very brief reasons.

In the present case we are departing from that last practice to a small extent because there were two matters raised by Miss Wentworth which we think we should briefly indicate our views on and which we think were the principal matters which she relied upon in her application.

The first was that she said that the decision in Degmam Pty Ltd (in Liq) v Wright (No 2) (1983) 2 NSWLR 354 showed that an order of the kind that was made in this case could only be made in circumstances such as occurred in that case where there had been a deliberate prolongation of a trial by deliberately false defences and allegations of fact. Miss Wentworth submitted that such was not this case. However, in one part of his reasons Waddell CJ in Eq said: