New South Wales Court of Appeal CITATION : Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335 FILE NUMBER(S) : CA 40099/98 HEARING DATE(S) : Heard on the papers JUDGMENT DATE : 29 September 1999 PARTIES : Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors JUDGMENT OF : Spigelman CJ; Mason P; Meagher JA COUNSEL : No appearance SOLICITORS : Environmental Defender's Office Ltd (Appellant) Blake Dawson Waldron (1R) CATCHWORDS : Costs - no question of principle DECISION : Application dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40099/98 LEC 40222/97 SPIGELMAN CJ MASON P MEAGHER JA Wednesday, 29 September 1999 TIMBARRA PROTECTION COALITION INC v ROSS MINING LTD & Ors JUDGMENT 1 THE COURT: A plethora of issues are raised in support of and opposition to the first respondent's application to reopen and vary the costs orders made on the disposal of this appeal (see 46 NSWLR 55 at 76). One of the few matters of agreement is the joint request that the Court address the arguments without oral hearing. 2 The Court ordered the (first) respondent Ross Mining NL to pay the costs of the appellant in this Court and in the Land and Environment Court. That respondent now proposes an order that: The respondent pay the costs of the appellant in this Court and the costs of the appellant thrown away as a result of the trial judge's ruling on the admissibility of the appellant's affidavit evidence in the Land and Environment Court, but not including the costs of preparing this affidavit evidence or other costs not incurred as a result of or thrown away due to this ruling on admissibility. 3 The question of costs was well and truly before this Court at the hearing. Submissions should have been made at that time. The nub of the argument now advanced is that the evidence which we held to have been wrongly rejected was in fact inadmissible on grounds additional to those relied upon by Talbot J at the first respondent's urging. But the new grounds were not advanced before Talbot J. Nor was the possibility of raising them flagged in a notice of contention. Despite making submissions that the appellant should not be awarded costs if successful, the respondent did not rely upon the proposition that it now seeks to raise for the first time. The evidence was not included in the appeal papers. The first respondent's approach to the appellate litigation bears some similarities to that addressed and disapproved very recently in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313. 4 Our costs order stands. The application is dismissed with costs. * * * * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.