RITCHIE v THE MANLY MUNICIPAL COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 19 April 1993 [1993] NSWCA 236 Mahoney JA. This is an application which originally was for striking out the appeal pending between the parties for lack of prosecution. Following the lodgment of the application the appeal papers have been put in order, and I understand that the defendant does not now desire to pursue the application to strike out the appeal for want of prosecution. However, it asks for costs of the application. Mr Kelly, while, as I understand it, accepting that there has been delay — and I apportion no blame to any particular person in that regard — has submitted that the circumstances of the plaintiff are such that the plaintiff should not be ordered to pay the costs of the application. He suggests that the matter should be left until the hearing of the appeal. He has referred to a matter which has been the subject of comment in other places, namely, that the costs of application to the court are now greatly increased and the availability of legal aid in civil matters is, as it is suggested, less than it previously was. He suggested that these matters should betaken into account by the court in determining the order that should be made. Iam conscious of the great increase which has taken place in the filing fees in relation to various matters in the court and the effect that may have upon parties to litigation. I do not think it appropriate, at least at this stage, to comment upon such matters. There are issues of policy involved. But accepting the thrust of what Mr Kelly has said, this is a case in which, as he has suggested to the court, that increase has had the result which has been referred to in other places, namely, that parties who would otherwise pursue an action may not be able to or at least are delayed or are suffering hardship by having to pursue it with such costs. However, I cannot see that that is a ground for denying the defendant the costs which otherwise should be ordered in its favour. I can appreciate that a case may be made, or sought to be made, to the effect that an order for payment should not take effect at the present time so as not to prejudice the plaintiff's position pending the determination of the appeal. I propose to order that the costs of the application be paid by the plaintiff, but that the costs be not enforced until the final determination of the appeal in this matter. If in fact the plaintiff is successful in the appeal, then the costs may be set off against any amount to which she is entitled as a result of the appeal. The order I make is to that effect. I make the following orders: The motion is dismissed. The costs of the application to strike out the appeal is to bepaid by the plaintiff, but not to be enforced until the appeal is heard and determined and to be set off against any amount that the plaintiff may be entitled to as a result of any appeal. They are the orders that I make. Orders accordingly.