STATE RAIL AUTHORITY OF NSW v CHEGWIDDEN [1996] NSWCA 499

STATE RAIL AUTHORITY OF NSW v CHEGWIDDEN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and CoLe JA 10 May 1996

[1996] NSWCA 499

Priestley JA. This is an appeal that can be dealt with briefly because the great bulk of it no longer requires argument. Following the decision in Andjelic v Stuart Marslan, by his Tutor The Protective Commissioner of NSW (High Court, 17 April 1996) the parties have been able to settle their differences in regard to everything raised in the notice of appeal, except a matter concerning costs.

The matter concerning costs arises from the fact that in the District Court, where the proceedings were conducted over three days, the plaintiff there (the respondent here) had senior counsel as well as junior counsel on two of the days. The Judge certified for senior counsel. The defendant/appellant included in its notice of appeal one ground asserting that the Judge was wrong in making that order for certification.

Two points arose in the appeal on this matter. One was the meaning of his Honour's order for certification. It was argued that since he had certified for senior counsel, he had not certified for two counsel. It is apparent, from reading the transcript of what took place before the District Court Judge, thathe, plaintiff's counsel and defendant's counsel were all approaching that matter on the basis that by certifying for senior counsel in accordance with the request of the plaintiff's counsel, the order made was intended to be a certification for two counsel. The Court is of the view that that is very plainly the case.

The second point argued was that in view of the nature of the case and the issues argued, it was not appropriate for the cost of senior counsel to be visited on the unsuccessful defendant. This was largely a matter for the Judge, who had a much closer knowledge of all the circumstances of the way the case was conducted and the issues in it than this Court has.