SCHNITZENBAUMER v DISTRICT COURT OF NEW SOUTH WALES and ORS [1998] NSWCA 205

SCHNITZENBAUMER v DISTRICT COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and SHELLER JJA

25 June 1998, 15 July 1998

[1998] NSWCA 205

COST ORDERS — discretion of the judge — Mining Act 1973.

On appeal the appellant submitted:

As his appeal was successful (his registration was restored), as there were no exceptional circumstances justifying the costs order, and as Wall DCJ's remark had no supportable basis, a costs order should have been made in his favour.

Held:

1. (a) The usual rule is that costs follow the event: Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, 48134 at 48136, but (b) courts also have a broad discretion on costs and some situations justify departure from the usual rule; Hughes; Cretazzo v Lombardo (1975) 13 SASR 4; further, appellate courts do not readily interfere with challenged cost orders in the absence of a material and significant mistake.

2. There was some support for Wall DCJ's remark in that the appellant had put a fuller case before him than had been put before the Chief Mining Warden, which, if put at first instance may have made an appeal unnecessary; further the appellant actually lost on the question (the breach of reg18) which took up most of the court time; and Wall DCJ could properly use his discretion to make the cost order that he did.

Mining Act 1973 s36, s152, s154(1), s158

Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, 48,134

Cretazzo v Lombardo (1975) 13 SASR 4

Mason P I agree with Priestley JA.

Priestley JA Mr J F Schnitzenbaumer had been the holder of claim No 7449 in the Mining Region of Lightning Ridge for a number of years when, by application dated 10 April 1991, the Regional Mining Officer asked the Chief Mining Warden that the registration of the claim be cancelled.