COLOMBO AND ORS v WALSH AND ORS [1997] NSWCA 70

COLOMBO AND ORS v WALSH AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Jupp R

24 November 1997

[1997] NSWCA 70

Jupp R In this matter the appellant has filed a notice of motion seeking leave to discontinue the proceedings on the basis that the third respondent pay the claimant's costs of the appeal and of the motion.

In support of the motion I have read an affidavit of Steven David Taylor Jones of 10 October 1997. This annexes the judgment of Judge Curtis of the Dust Diseases Tribunal of 1 November 1996.

In February of this year the third opponent filed a notice of appeal with appointment appealing from the decision of Judge Curtis. The essential argument that the claimant has put to me today is that the notice of appeal that was filed by them was a protective appeal, that w as only brought because the third opponent had filed an appeal. Judge Curtis' judgment gave the appellant claimant full indemnity and it w as only in the event that the third opponent's appeal was successful that there was any risk that the claimant appellant would be liable.

During the course of argument this morning I asked Mr Grant why a cross-appeal had not been filed in the third opponent's appeal rather than a fresh appeal which meant incurring a new filing fee. Mr Grant could not explain why that was necessary. In the event that a cross-appeal had been filed it appears to me that the costs that the claimant would have incurred in these contingent protective appeal proceedings would have been significantly less than those that have been incurred by lodging their own appeal. As it happens many of the costs of this appeal are going to correspond with the claimant's costs as respondents to the opponent's appeal. In particular there will be the same attendances before the Registrar and the same correspondence expenses. It is going to be a difficult task if the parties cannot agree on costs, for a cost assessor to distinguish the different costs between the two sets of proceedings. However, I accept the right of the respondent to file a protective appeal in the circumstances of this case. What I dispute is the way that it has been done.