AMALGAMATED TELEVISION SERVICES PTY. LIMITED v. MARSDEN (NO. 2) [2001] NSWCA 119

New South Wales Court of Appeal

CITATION : AMALGAMATED TELEVISION SERVICES PTY. LIMITED v. MARSDEN (NO. 2) [2001] NSWCA 119 FILE NUMBER(S) : CA 40394/00 HEARING DATE(S) : Written Submissions JUDGMENT DATE : 27 April 2001

PARTIES : AMALGAMATED TELEVISION SERVICES PTY. LIMITED (Claimant) JOHN MARSDEN (Opponent) JUDGMENT OF : Priestley JA; Powell JA; Foster AJA

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20223/95; CLD 20592/96 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER :

COUNSEL : Written Submissions SOLICITORS : Mallesons Stephen Jaques (Claimant) Marsdens (Opponent) CATCHWORDS : COSTS ND DECISION : Motion dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40394/00 CLD 20223/95; 20592/96

PRIESTLEY JA POWELL JA FOSTER AJA

Friday, 27 April 2001

AMALGAMATED TELEVISION SERVICES PTY LTD v MARSDEN [NO 2]

1 THE COURT: There was a lengthy hearing of this matter on 6 and 7 July 2000. Amalgamated Television Services Pty Limited applied for leave to appeal against interlocutory orders made by Levine J. The application was heard on the footing that if the court thought leave should be granted the appeal would be dealt with without further argument. 2 Towards the end of the argument there was a passing reference to the costs of the proceedings in which the court indicated that one of the opponent's arguments would be relevant to costs. The context of the reference shows that the court had in mind that the particular argument would be in the opponent's favour in the consideration of costs. 3 No submissions were otherwise explicitly made in regard to costs. 4 The court delivered judgment on 13 July 2000. The court ordered that leave to appeal be granted and that the appeal be allowed in part. Consequential orders were made. The claimant thus had some success; its application for leave succeeded and its appeal partly succeeded, although it did not obtain the relief it was principally seeking. After particularising the way in which the appeal partly succeeded the court then ordered that the appeal be otherwise dismissed. 5 At the end of our reasons we said that we were of the opinion that, in all the circumstances, it was appropriate that each party should bear its own costs of the application. Accordingly, the formal order was, No order as to costs. 6 It frequently happens that in proceedings of the kind disposed of on 13 July 2000, no explicit arguments are made regarding costs and the court unless there is some particular reason for taking a different course ordinarily acts on the basis that the parties have left it to the court to decide the question of costs without further argument. It was on that basis that we dealt with costs in the way that we did in our reasons and orders of 13 July 2000. In saying that we were of the opinion that in all the circumstances each party should bear its own costs of the application we were referring to the circumstances of the proceedings relevant to the question of costs, including the one matter that had been explicitly mentioned in that connection in the course of the argument. 7 By letter dated 2 August 2000 the opponent, Mr Marsden, wrote to the Registrar of the Court of Appeal enclosing a notice of change of solicitor and stating that he was now acting for himself. In his letter he requested that the proceedings be listed before the same judges who had delivered judgment on 13 July 2000 for the purpose of his applying to vary the costs order. 8 The Registrar indicated to the opponent that he should file a notice of motion seeking the orders that he wanted. This was done and the notice of motion came before the Registrar on 4 September 2000 together with another interlocutory matter in the proceedings. 9 In the present motion the Registrar directed that written submissions be filed by the opponent by 29 September and the claimant by 13 October 2000. The Registrar informed the parties that the matter would be referred to the relevant judges once the submissions were received. The parties acquiesced in this procedure. 10 Thereafter, written submissions were lodged with the court in accordance with the Registrar's directions. 11 The opponent's submissions went into detail about the course of the proceedings. The submissions emphasised various shortcomings of the claimant in the conduct of the proceedings and the fact that the claimant had had only limited success in the proceedings. The submissions for the claimant were, in effect, a mirror image of those for the opponent and emphasised there was no error shown by the opponent in the court's exercise of discretion. 12 The matters relied upon by both parties had been taken into account by the court in making its costs order on 13 July 2000. We do not think the circumstances either require or justify the court re-opening the costs order for further argument. In our view, if a review were permitted, we would simply confirm our earlier order. 13 We think therefore that the opponent's notice of motion should be dismissed. In the claimant's written submissions it was submitted that dismissal should be with costs. 14 We can see no reason why the ordinary practice in such circumstances should not be followed. 15 Our order therefore is that the opponent's motion be dismissed with costs. *********