SELLARS v NEWCOM COLLIERIES PTY LIMITED [1996] NSWCA 469

SELLARS v NEWCOM COLLIERIES PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and COLE JA 21 May 1996

[1996] NSWCA 469

Fact

Appellant sought review of two costs orders below, in particular one in which the parties were at liberty to apply.

Held:

The right of his Honour to make costs orders is discretionary and a successful challenge of such an order must demonstrate such an order is made with some mistake of law, some mistake of fact or some wholly unreasonable behaviour, none of which were demonstrated in this case.

Meagher JA. In this matter the worker, who is the current appellant, brought an application before the Compensation Court for three injuries allegedly suffered by him and seeking in addition to other matters orders under Section 66 and Section 67 of the Workers" Compensation Act, 1987. The employer's reply put everything in issue.

His Honour Judge Bishop heard the case and gave judgment in favour of the worker on 20 January 1995. I shall not set out the orders which his Honour made under Section 66 or 67 because they are no longer of relevance,nor shall I set out an order his Honour made under Section 60 because that is likewise not of relevance.

All that is of relevance is the order as to costs. There were two such. The first order as to costs which his Honour made, which is now in dispute is that the respondent, that is the employer, pay the applicant's costs, such costs to include two qualifying fees.

The second order which his Honour made on the subject was that liberty granted to apply generally as to costs.

Presumably the liberty to apply order was made by his Honour because he had had some indication from counsel that the compensation application in front of him was not the only matter which arose out of the injuries complained of. There were also parallel common law matters.