O P INDUSTRIES PTY LTD v MMI WORKERS COMPENSATION (NSW) LIMITED [1996] NSWCA 407

O P INDUSTRIES PTY LTD v MMI WORKERS COMPENSATION (NSW) LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 29 April 1996

[1996] NSWCA 407

Mahoney P. The question has arisen in this appeal as to whether a party, which I shall describe as Central West, should be a party to the appeal. The Registrar directed that that party, Central West, be made a party to the appeal.

Mr McNally, who appears for the appellant, has taken the point that it is not necessary to join that party, that additional costs will be incurred if the party is a party to the appeal and that accordingly the order of the Registrar should be reversed. I note that no question arises as to the power of the Registrar to make the order; the only issue is whether in the circumstances the order should have been made.

Mr McNally has suggested that, having regard to the nature of the findings by his Honour below and the nature of the appeal and in particular the relief sought in the appeal, Central West is not a necessary or perhaps not a proper party to the proceedings. In dialogue between bench and bar, the suggestion has been made by Miss Tam and by Mr Cummings, who appear for the respondent parties, that whatever be the position on the notice of appeal as at present framed, it may be that in the course of the argument of the appeal, relief against Central West may becomeDo the parties have any view contrary to that?

McNALLY: No, your Honour.

CUMMINGS: Your Honour, only in relation to the plaintiff's costs. We will be at the appeal in any event and these matters were ventilated before the Registrar who made the order.

HIS HONOUR: You will be able to put those matters to the Court on the appeal.

I will order that the costs of the present application be dealt with in the discretion of the Court which deals with the appeal. Mr Cummings, for the plaintiff in the proceeding, has pointed out that he may not be affected by the matter and therefore should have his costs. Whether or not his client will be affected by what happens on the appeal is a matter to be determined on the appeal and the arguments that he foreshadows can be dealt with by the Court dealing with the appeal.