WOODS and ORS (T/as TURNER FREEMAN) v HANOLDT (No 2) [1995] NSWCA 526

WOODS (T/as TURNER FREEMAN) v HANOLDT (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA

31 August 1995

[1995] NSWCA 526

COSTS — SCR Pt52 R66(1)(c)

FACTS

The appellant's argued that costs should be awarded the respondent's original solicitors and on an indemnity basis. The respondent's original solicitors argued that no costs were 'incurred improperly' or without reasonable cause. Nor were any costs wasted by undue delay or by any other misconduct or default on the part of the respondent's solicitors within the meaning of SCR Pt52 R66(1)(c).

HELD

The respondent's original solicitor's submission is correct. Furthermore, there was no conscious or flagrant endeavour to abuse the process of the court.

An ordinary costs order should be made. The respondent should pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of costs of the appeal.

ORDERS

The respondent should be ordered to pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of the costs of the appeal.

Clarke JA On 16 June 1994 this Court ordered that leave to appeal by granted, that the appeal by upheld and that the subpoena, insofar as it required production of the documents ultimately mentioned in the written judgment, be set aside. The Court then reserved the question of costs and its reasons. On 9 March 1995 the court delivered formal reasons for the orders which it had made but of course did not deal with the question of costs.

The parties have now submitted written submissions on those costs. In their submissions, the appellants seek an order that costs be awarded against the respondent's solicitors (rather than the respondent) and that the costs be on an indemnity basis. It is said that the respondent took no part in bringing about or effecting the abuse of process and for this reason the proper order should be that the appellants' costs be paid by the respondent's solicitors. It was contended that the Court had power to make such an order pursuant to s76(1) of the Supreme Court Act 1970 and SCR Pt52 R66 and, in respect of the costs in the court below, by virtue of s29 of the Dust Diseases Tribunal Act 1989 and s75A(10) of the Supreme Court Act.