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. Exactly what was the nature of those common law matters does not matter in the slightest, suffice it to note that they did exist. In due course in August 1995 the employer had the matter re-listed and sought to re-argue the cost orders. His Honour indicated, in my opinion perfectly correctly, that it was undesirable to have the costs orders re-agitated on a mere mention and asked for a motion to be taken out. That in due fact was done. In taking out that motion the employer was fairly clearly exercising its rights under the liberty to apply which was reserved to it. This is made fairly clear in the transcript of 4 August 1995 where Mr Wilkins, who appeared for the employer, said, 'As I understand it, your Honour gave leave to re-consider the question of costs generally in the event that the applicant decided not to accept 2 UNREPORTED JUDGMENTS the cheque which has in fact happened.' Those words from the employer's counsel indicate that the liberty to apply was the right which the employer was invoking. The reference to the cheque fairly clearly indicates that at this stage of proceedings the worker had decided that he was not satisfied with the award made by his Honour in the workers compensation proceedings and preferred to prosecute his rights under the common law, hence the cheque which had been offered in relation to the workers compensation proceedings had been returned. In the light of those circumstances it was debated between both sides as to what if any amendments should be made to the costs orders already made. His Honour eventually on 19 September 1995 said this, 'In my opinion as a discretionary matter on the costs issue the relief sought by the applicantemployer in this notice of motion ought be granted. Under these circumstances I re-consider the award of 31 January 1995 and delete therefrom the order that the respondent should pay the applicant's costs and make an order in those proceedings that each party should bear their own costs. I think under the circumstances the respondent worker should pay the applicant's costs of this motion.' As his Honour says, his Honour's rights to make awards of costs are discretionary rights. In order to upset those rights any person challenging them would have to demonstrate that there was some mistake of law, some mistake of fact or some wholly unreasonable behaviour. None of those things have been demonstrated. Indeed, the foundation of the appellant's argument seems to have been that his Honour's re-consideration of the costs order was improper because it did not comply with some provision under the workers compensation regulations or rules. To my mind this argument is wholly misconceived. His Honour was not dealing with the re-consideration of the costs under any specific rule. His Honour was simply dealing with them pursuant to the liberty to apply which had already been granted. In these circumstances I am of the opinion that the appeal should be dismissed with costs. Handley JA. I agree. Cole JA. I also agree. Meagher JA. The order of the Court therefore is the appeal is dismissed with costs. (1) Appeal dismissed with costs. Counsel for the appellant: A F PUCKERIDGE QC Solicitors for the apellant: HIGGINS and HIGGINS Counsel for the respondent: R F WILKINS Solicitors for the respondent: DEACON GRAHAM and JAMES