CLISDELL v COMMISSIONER OF POLICE [1993] NSWCA 63

CLISDELL vy COMMISSIONER OF POLICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and CRIPPS JJA

14 September 1993, 1 October 1993

[1993] NSWCA 63

COSTS

Handley Jajudgment ON COSTS I agree with Sheller JA.

Sheller JA On 14 September 1993 the Court gave judgment on this appeal. The Court allowed the appeal and ordered the respondent Commissioner of Police to pay the appellant's costs. Immediately after our decision was announced counsel for the respondent informed the Court that he wished to put submissions on costs. The Court directed that these submissions be put in writing, which has been done.

The respondent submitted that costs should not follow the event for two reasons. First it was said that the recommendation made by the Tribunal was not made on the application of the respondent who was put in the position, on appeal to this Court, of resisting the appeal in the role of a proper contradictor and in respect of a novel point which the respondent did not raise before the Tribunal. Accordingly it was said that as a matter of discretion costs ought not to follow the event. While it is true, so far as the material before us goes, that the respondent did not ask the Tribunal to make the recommendation it did, the respondent enthusiastically undertook the defence of it to the point of filing a notice of motion challenging the competency of the appeal. In my opinion the first ground relied upon is no basis for the Court not exercising its discretion in favour of ordering the unsuccessful respondent to pay the successful appellant's costs.

The second reason advanced for the central proposition relies upon the fact that shortly prior to the hearing of the appeal the appellant gave notice that she wished to amend her notice of appeal to raise what was called the "hurt on duty" point involving interpretation of that phrase in the Police Regulation (Superannuation) Act 1906 and the conduct of the hearing before the Tribunal. The respondent argued that this amendment raised substantial issues involving considerable work by the respondent's counsel and solicitor. The amendment was abandoned on the morning when the hearing of the appeal commenced. In her written submissions the appellant did not oppose an order that she pay such costs as were thrown away by reason of the proposal to amend the notice of appeal to include the grounds concerning the construction of the phrase "hurt on duty".