New South Wales Court of Appeal CITATION : HARDING v BOURKE (NO 2) [2000] NSWCA 373 FILE NUMBER(S) : CA 40424/99 HEARING DATE(S) : Heard on the papers JUDGMENT DATE : 20 December 2000 PARTIES : DR BRUCE HARDING v GWEN BOURKE JUDGMENT OF : Mason P at 1; Meagher JA at 11; Heydon JA at 12 COUNSEL : Appellant: D J Hooke Respondent: K Pryde SOLICITORS : Appellant: Colin Biggers & Paisley Respondent: Schrader & Associates DECISION : See pars 8, 9, 10 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40424/99 DC 8440/95 MASON P MEAGHER JA HEYDON JA Wednesday 20 December 2000 DR BRUCE HARDING v GWEN BOURKE (No 2) JUDGMENT 1 MASON P: On 23 March 2000 the Court allowed this appeal and made consequential orders (Harding v Bourke [2000] NSWCA 60). 2 The respondent (the plaintiff in the court below) seeks a special order for costs based upon the appellant's rejection of an offer of compromise made in accordance with Pt 22 of the Supreme Court Rules. The respondent seeks an order that the appellant pay the respondent's costs of the appeal (including the leave application) and that the costs of the hearing before Naughton DCJ should be made costs in the cause. 3 The respondent's offer, made after leave to appeal had been granted, proposed the following consent orders: 1. Appeal allowed. 2. Proceedings remitted to the District Court upon the Plaintiff's undertaking to apply for: a. An extension of time seeking rescission of the deemed dismissal. b. Such rescission. 3. The Respondent to pay the Appellant's costs of the appeal (noting that the Respondent will apply for a Suitors Fund Certificate). 4 The offer was made in accordance with Pt 22. It was rejected on 26 November 1999. 5 The result of the appeal was similar to that proposed in the offer, but there were two differences. First, this Court set aside all of the orders of Naughton DCJ made on 14 May 1999 thereby leaving the costs of the motion that led to those orders to the discretion of the District Court when it addresses the motion which this Court remitted for further hearing in accordance with its reasons. Secondly, the respondent was proposing to pay the appellant's costs of the appeal, whereas this Court ordered costs of the appeal to be costs in the motion. Our order was based upon the appellant's mixed success in the appeal in that we upheld the appellant's submission that Pt 12 r4(c) of the District Court Rules was valid while rejecting the appellant's submission that the motion for relief against the consequences of failure to file a timely praecipe in the District Court was doomed to failure. 6 It is relevant that the respondent's offer of compromise did not relate to the ultimate disposition of the action in the District Court, but was effectively confined to the disposition of the proceedings in the Court of Appeal. This in itself creates difficulties with respect to the direct application of Pt 51A r22 of the Supreme Court Rules (cf Fotheringham v Fotheringham (No 2) (1999) 46 NSWLR 194 at 201). 7 In any event this Court retains an ultimate discretion as to costs (Fotheringham). In the exercise of that discretion I would not vary the costs order made on 23 March 2000 despite the additional information now placed before us. The respondent made the offer after the filing of the White Book (which effectively became the record for the appeal) and after leave to appeal had been granted over the opposition of the respondent. There were, as indicated, discrepancies between the offer and the ultimate order of the Court. It was necessary that this Court address what had become a test case about the validity of rule 4: to have upheld the appeal by consent would have left the matter unresolved in circumstances where opposing views had been expressed by different members of the District Court. 8 Bearing in mind the attitude adopted by the respondent at the hearing of the appeal proper as to the validity of the rule and taking into account the appellant's limited success on the appeal, the order that the costs of the appeal should be treated as costs in the remitted motion should stand. 9 The appellant's application to vary the costs order should also be rejected, not only because it should have been made earlier since it does not arise out of the rejection of the offer of compromise, but on its merits for the reasons already given. 10 Alternatively, the respondent submits that if she is to bear any of her own costs in the Court of Appeal or to pay any of the appellant's costs, a certificate under the Suitors Fund Act 1951 should be given. I would grant such a certificate, but without warranting that it can be fully availed of until the remitted motion is disposed of. 11 MEAGHER JA: I agree with Mason P. 12 HEYDON JA: I agree with Mason P. ************** 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.