HART v HERRON and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER JA 8 March 1994 [1994] NSWCA 122 Sheller JA This matter has come back before me pursuant to a direction of the Court in its judgment of 16 December 1993. Mr Parker of Queen's Counsel, who appears for the appellant, has informed the Court that, in accordance with the opportunity given to the appellant to make an election, the appellant has elected to rely upon new evidence as fresh evidence entitling him to a new trial. The parties have proposed orders that should now be made to deal with the situation in light of that election, and I will come back to make those orders in due course. There remains a contest about the costs of the application which was made by the respondents to have parts of the amended notice of appeal struck out. It is submitted on behalf of the respondents that the application was necessary in order to resolve an issue about the competence of three paragraphs in the amended notice of appeal; namely, para3, para4 and para30. Following the making of the application the appellant abandoned para4 of the notice of appeal. In its judgment on 16 December 1993 the Court pointed out the somewhat unusual nature of this particular appeal and I do not think it necessary for me to rehearse what the court there said. The respondents ask for their costs of the application. Mr Parker has put submissions to the effect that the appellant should have the costs of this application. While I think it is true to say that the application was a catalyst which enabled the problems of the amended notice of appeal to be debated and resolved, I also think that, subject to amendment, the appellant has, in part at least, succeeded in maintaining his grounds of appeal. In all the circumstances, I think the appropriate order for costs is that the costs of the application should be costs in the appeal. Accordingly, I make the following orders: (1) The appellant on or before 10 May 1994 is to file and serve upon the respondent such affidavits as he wishes to rely upon in support of an application to adduce fresh evidence on the appeal. (2) The appellant on or before 29 March 1994 is to file and serve an amended notice of appeal. (3) The application is stood over to 9.30 am. on 11 May 1994. (4) The costs of the application up to and including this point of time will be costs in the appeal.