New South Wales Court of Appeal CITATION: Goodrich Aerospace Pty Limited v Arsic (No 2) [2006] NSWCA 119 HEARING DATE(S): On written submissions JUDGMENT DATE: 16 August 2006 JUDGMENT OF: Mason P at 1; Ipp JA at 2; Tobias JA at 10 DECISION: (1) Order (4) of the orders made on 18 July 2006 be amended by adding the following words to the order in question: " save to the extent of any interlocutory costs orders" (2) Otherwise the orders proposed stand (3) The respondent to pay the costs of the argument in relation to the issue of costs. PARTIES: Goodrich Aerospace Pty Limited (Appellant) Dusan Arsic (Respondent) FILE NUMBER(S): CA 40821/05 COUNSEL: J E Maconachie QC/D P Kelly (Appellant) B M J Toomey QC/D J Hooke (Respondent) SOLICITORS: Cutler Hughes & Harris (Appellant) Beilby Poulden Costello (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1445/04 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 07/09/05 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40821/05 DC 1445/04 MASON P IPP JA TOBIAS JA Wednesday 16 August 2006 GOODRICH AEROSPACE PTY LIMITED v DUSAN ARSIC (No 2) Judgment (On Costs) 1 MASON P: I agree with Ipp JA. 2 IPP JA: In my judgment delivered on 18 July 2006 I proposed the following orders: (1) The orders made by Ainslie-Wallace DCJ are set aside. (2) The issue of liability is to be remitted to the District Court for retrial. (3) The damages assessed by Ainslie-Wallace DCJ are reduced by $1,755.00 to $201,522.96. (4) The costs of the trial are costs in the cause. (5) Mr Arsic is to pay Goodrich the costs of the appeal. (6) Mr Arsic is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Mason P and Tobias JA agreed with the orders I proposed. When judgment was delivered the respondent sought liberty to apply in relation to the costs order and this was granted. Both parties have filed written submissions on this issue. 3 The respondent pointed out that interlocutory costs orders were made below in his favour. He submits that the order to the effect that the costs of the trial be costs in the cause be amended to read: "The costs of the trial are costs in the cause, save to the extent of any interlocutory costs orders". The appellant does not contest this and the order should be as amended as the respondent seeks. 4 In relation to the costs of the appeal the respondent submits that an order should be made that the costs of appeal are to abide the outcome of the retrial. He opposes an order that he pay the appellant the costs of the appeal. 5 The respondent bases this submission on the following grounds: (a) The appellant (on the respondent's argument) succeeded on appeal on the basis that greater weight should be accorded to the evidence of Mr Maslic as to particular issues on the ground that he had not been challenged in cross-examination in regard to them. The respondent submits that this basis for allowing the appeal was not a ground of appeal in the notice of appeal. The respondent further submits that the appellant had not argued to the trial judge that greater weight should have been accorded to Mr Maslic's evidence because he had not been cross-examined on the issues in question. (b) The appellant failed in challenges in relation to the judge's findings in regard to the liability of the respondent's employer and also as to damages (save to an extent conceded by the respondent) 6 The appellant, on the other hand, submits that it succeeded in its appeal on the grounds it raised and not only on the basis that Mr Maslic had not been challenged on certain issues in cross-examination. This submission is correct. Further, I would regard the argument based on the failure to cross-examine Mr Maslic as part of the ground of appeal that challenged the factual findings made by her Honour. 7 The grounds on which the appellant failed played a very minor part in the appeal. 8 I see no reason why the ordinary rule should not follow and the order that the respondent pay the appellant the costs of the appeal, in my view, should stand. 9 In consequence I propose that the following orders be made: (a) Order (4) of the orders made on 18 July 2006 be amended by adding the following words to the order in question: "save to the extent of any interlocutory costs orders". (b) Otherwise the orders proposed stand. (c) The respondent to pay the costs of the argument in relation to the issue of costs. 10 TOBIAS JA: I agree with Ipp JA. ********** 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.