New South Wales Court of Appeal Richards v. Kadian & Ors. (No.2) [2005] NSWCA 373 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): Dealt with on written submissions in Chambers JUDGMENT DATE: 2 November 2005 JUDGMENT OF: Hodgson JA at 1 DECISION: The costs of the appeal be assessable and payable forthwith. CATCHWORDS: PROCEDURE - Costs - Appeal - Interlocutory matter - Whether order should be made that costs be assessable and payable forthwith. LEGISLATION CITED: Legal Aid Commission Act 1979 s.42 CASES CITED: Fiduciary Ltd. v. Morningstar Research Pty. Ltd. [2002] NSWSC 52, 55 NSWLR 1 Bruce Richards - claimants PARTIES: Ankur Kadian by his tutor Janak Kadian, Janak Kadian, Gurmeet Kadian - opponents FILE NUMBER(S): CA 41020/04 Mr. S.A. Woods for claimant COUNSEL: Mr. D. Higgs SC with Mr. I. Butcher for opponents Blake Dawson Waldron - claimants SOLICITORS: McLaughlin & Riordan - opponents LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC20219/01 LOWER COURT JUDICIAL OFFICER: Campbell J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41020/04 SC 20219/01 HODGSON JA Wednesday 2 November 2005 RICHARDS V. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. (NO.2) Judgment 1 HODGSON JA: When the judgment of the Court of Appeal was handed down by me on 23 September 2005, the respondent applied orally for an order that its costs be assessable forthwith. I gave leave for written submissions in support of that application to be lodged within 7 days, and for submissions in response to be lodged within a further 7 days. In this judgment, I am dealing with that application, pursuant to s.46(2)(a) of the Supreme Court Act. 2 It is not entirely clear whether the application relates only to the costs of the appeal, or also to the costs at first instance. In my opinion, it would be inappropriate for this Court to deal, after dismissal of an appeal, with the question whether the costs at first instance should be assessable forthwith. That could possibly have been raised at the hearing of the appeal, at least if such an application had been made to the primary judge and refused; but it cannot be raised now. It may be possible still to make such an application to the primary judge. 3 Accordingly, I will confine my attention to the costs of the appeal. 4 In opposing an order that the costs of the appeal be assessable and payable forthwith, the appellant has relied inter alia on the circumstance that the respondent is legally aided. However, s.42 of the Legal Aid Commission Act 1979 provides: 42 Discretion of court or tribunal as to costs A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person. 5 In my opinion, the order sought is an "order as to costs" within that provision. In some cases, a party may support an application for such an order on the basis that without it, the party cannot obtain legal representation for the proceedings; and that is a ground not available to a legally aided person. I would not read s.42 as excluding such a ground for a person not legally aided, or as requiring the Court to act on a false basis where a party has legal aid. However, no such ground is relied on in this case; and in those circumstances, I do not think that the circumstance that the respondent is legally aided is relevant to this application. 6 In my opinion, the one substantial ground in support of the order sought is that the significance of the order appealed against to the particular case seems hardly sufficient to justify the costs of an interlocutory appeal; and that one substantial reason why these costs were incurred was that the principles involved were of wider significance, particularly to the appellant's insurer. This significance was one basis on which it was submitted that the grant of leave to appeal was appropriate. This consideration in turn supports the view that the appeal proceedings can be seen as a separately identified matter: cf. Fiduciary Ltd. v. Morningstar Research Pty. Ltd. [2002] NSWSC 52, 55 NSWLR 1. 7 The question is one of time of enforcement, and the related question of whether it is more appropriate to have one occasion of enforcement of costs orders at the end of a case, with costs orders going different ways being set off. With some hesitation, I think that the ground identified above is sufficient to justify the order sought. 8 For those reasons, I order that the costs of the appeal be assessable and payable forthwith. ********** 02/11/2005 - - Paragraph(s) 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.