INSURERS' GUARANTEE FUND NEM GENERAL INSURANCE ASSN LTD (in liq) V BAKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and SHELLER JJA 10 February 1995, 10 February 1995 [1995] NSWCA 209 PRACTICE PROCEDURE — Court of Appeal — costs — appeal bound to succeed on basis of clear authority of Court of Appeal — appellant suggests to other parties consent orders to allow appeal and set aside award of Compensation Court — one respondent does not agree to the proposed course — costs of hearing of appeal incurred — resisting respondent agrees belatedly to orders proposed — held: By reason of delay in accepting a proposal of the appellant, the resisting respondent should pay the costs of the appeal of the appellant and of the other respondent which was agreeable to the orders proposed. COSTS — Court of Appeal — suggestion that appeal bound to proceed — held: Resisting respondent must pay costs of appellant and other respondent. COMPENSATION costs — appeal — apportionment not available — appeal bound to succeed — held: Respondent which necessitated appeal must pay costs of other parties. Workers Compensation Act 1987. Kirby P Ex tempore In the Compensation Court Geraghty CCJ made an award in favour of a worker, Mr J Baker. There were a number of insurers joined in the proceedings. His Honour, apparently without argument, proceeded to apportion liability as between the insurers. His Honour's award in this respect is covered by a decision of this Court in Insurers Guarantee Fund NEM Insurance Association (in liquidation) v GIO General Ltd (1994) 33 NSWLR 247 (CA). By that decision, it was not competent for his Honour, in law, to apportion liability as between the succeeding insurers. The Workers Compensation Act 1987 does not, so it was held, permit that course. That this is so is not now in dispute. The appeal of Insurers Guarantee Fund NEM General Insurance Association Ltd (In Liquidation), which was the insurer assigned liability by his Honour, must therefore succeed. That is also not in dispute. The question is who should pay the costs which have been occasioned by the appeal which has therefore succeeded. The normal rule would be that, the appeal having succeeded, the respondent responsible for the proceedings would pay the costs of the appeal. The Court was informed that, although joined in the appeal, the worker, who had no interest in the dispute between the insurers, was earlier excused. The worker has not appeared before us today. But the other insurers have appeared. Some of them claim their costs of being brought here. Before the hearing, a letter was written by the solicitors for the appellant to the various parties suggesting consent orders which would have obviated the hearing of an appeal. The second respondent agreed to those consent orders. Had they 2 UNREPORTED JUDGMENTS then been made the costs of the appeal would have been minimal. However, the fifth respondent did not consent to the orders proposed. Accordingly, the appeal proceeded towards its hearing date today. On 8 February 1995 it appears that the fifth respondent finally agreed that the orders earlier proposed by the appellant to dispose of the substance of the appeal would have to be made. It has agreed to those orders, today, save as to costs. The basis upon which the fifth respondent resists an order that it pay the costs occasioned by its earlier refusal to agree to the sensible course proposed by the appellant is not entirely clear to me. The costs have been incurred by reason of the delay on the part of the fifth respondent in acceding to the request which, if it had been agreed to, would have obviated the continuation of the litigation. I see no merit in the resistance to the order that will follow in due course. In my view, the fifth respondent must pay the costs of the appellant. The second respondent also asks for its costs. It was agreeable to the consent orders that were earlier proposed. Therefore, its costs of the hearing the appeal have been incurred by reason of the delay of the fifth respondent in agreeing to the consent orders to which it has belatedly put its counsel's signature. Such delay must have the same consequence. The fifth respondent must pay the second respondent's costs. The orders which I would therefore propose are orders 1 to 5, being the orders upon which the parties have agreed, and order 6 that the fifth respondent pay the costs of and incidental to the appeal of the appellant and of the second respondent, they being the only parties to seek orders for costs. As most of the costs of the appeal are the costs of the hearing (including counsel's fees) I see no point in differentiating the costs of the appeal before and after the suggestion was made for the appellant which was so unwisely rejected. The appeal has been allowed, in effect, on a question of law. Ordinarily that fact would attract a certificate under the Suitors' Fund Act 1951. However, I think that the Court can take notice of the fact that the respondents, being substantial corporations, may not be qualified for a certificate. Unless a party seeks it I would not propose a certificate under that Act. The order which I therefore propose in the issue in contest is that the fifth respondent pay the costs of the appeal of the appellant and of the second respondent. Clarke JA I agree. Sheller JA I also agree. Kirby P Such are the orders of the Court. Fifth respondent to pay the costs of the appeal of the appellant and of the second respondent. Counsel for the appellant: J N West QC/F J Davis Solicitors for the appellant: N W Aussel No appearance for the first respondent Counsel for the second respondent: S Motby Solicitors for the second respondent: Rishworth Dodd & Menczel UWRSURERS' GUARANTEE FUND NEM GENERAL INSURANCE ASSN LTD (in lig) 8 BAKER (Kirby P) (Kirby P) Counsel for the third to fifth respondents: TM Wardell Solicitors for the third to fifth respondents: P W Turk & Associates