New South Wales Court of Appeal CITATION : Coles Supermarkets Australia Pty Ltd v Taylor (No 2) [2004] NSWCA 399 HEARING DATE(S) : JUDGMENT DATE : 4 November 2004 JUDGMENT OF : Stein AJA at 1; Gzell J at 2 DECISION : Stay lifted. CATCHWORDS : PROCEDURE - Costs - Respondent ordered to pay one third of appellant's costs - Order stayed for further argument - District Court Rules 1973, Pt 39A, r25(4) on costs where plaintiff does better than offer of compromise - Inapplicable to costs of appeal - Appeal costs governed by Supreme Court Act 1970, s 76(1) Suitor's Fund Act 1951 LEGISLATION CITED : District Court Rules 1973 Supreme Court Rules 1970 Supreme Court Act 1970 PARTIES : Coles Supermarkets Australia Pty Ltd (Appellant) Colleen Taylor (Respondent) FILE NUMBER(S) : CA 40780/03 COUNSEL : J E Maconacchie QC/ H Halligan (Appellant) J L Glissan QC/ A R Reoch (Respondent) SOLICITORS : Hicksons (Appellant) John Dowling (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 8251/02 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40780/03 DC 8251/02 STEIN AJA GZELL J THURSDAY 4 NOVEMBER 2004 COLES SUPERMARKET AUSTRALIA PTY LTD v COLLEEN MAY TAYLOR (NO 2) Judgment 1 Stein AJA: I agree with Gzell J. 2 Gzell J: The court delivered judgment in this matter, allowing the appeal in part, substituting judgment for the plaintiff for $252,584.41 in place of the judgment entered in the District Court of $464,982.66 and ordering the respondent to pay one third of the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951. 3 The respondent submitted that a different order for costs should have been made. The orders of the court were stayed and the parties directed to provide written submissions. 4 The District Court Rules 1973, Pt 39A r 25(4) provided: "Where an offer is made by a plaintiff 28 days or more before the hearing of the action commences, and the offer is not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court in an exceptional case and for the avoidance of substantial injustice otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim assessed on a solicitor and client basis." 5 The respondent submitted that that rule should have been applied by this court since she made an offer to the appellant to compromise in the sum of $120,000 plus out of pocket expenses plus costs. It was submitted that no exceptional case or the need to avoid a substantial injustice arose. 6 The appellant instituted proceedings in the Supreme Court by filing and serving a notice of appeal in terms of the Supreme Court Rules 1970, Pt 51 r 6. Those proceedings were assigned to the Court of Appeal under the Supreme Court Act 1970, s 48(2)(f) as proceedings in the court on an appeal from a specified tribunal. For this purpose, the District Court or a judge of the District Court is a specified tribunal in terms of s 48(1)(iv). 7 The Supreme Court Act 1970, s 75A(6) provided that the Court should have the powers and duties of the court, body or other person from whom the appeal was brought. Those powers and duties are necessary in order that the Court of Appeal may bring a matter to a conclusion. They do not, in my view, empower the Court of Appeal to act under the District Court Rule Pt 39A r 25(4) so far as the costs of the appeal are concerned. The Court of Appeal may act under the rule to adjust costs in the District Court. But once there are proceedings in the Supreme Court, the power to award costs is to be found in the Supreme Court Act 1970, s 76(1) which was in the following terms: "Subject to this Act and the rules and subject to any other Act - (a) costs shall be in the discretion of the Court; (b) the Court shall have full power to determine by whom and to what extent costs are to be paid; and (c) the Court may order costs to be assessed on the basis set out in the Division 6 of Part 11 of the Legal Profession Act 1986 or on an indemnity basis." For the purpose of that subsection, the expression "costs" included, in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal in terms of s 76(2)(b). 8 In exercising its discretion under the Supreme Court Act 1970, s 76(1) the Court of Appeal might have regard to an offer of comprise made before a hearing in the District Court from the judgment in which an appeal is brought to the Court of Appeal. But the power of the Court of Appeal to award costs is to be found in s 76(1) and not in the District Court Rules Pt 39A r 25(4). 9 In my view the order of the Court that the respondent pay one third of the appellant's costs but it should have a certificate under the Suitor's Fund Act 1951 should stand and the order of the Court should be that the stay be lifted. ********** I Last Modified: 11/18/2004 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.