New South Wales Court of Appeal CITATION: Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 330 HEARING DATE(S): 09/02/2005 JUDGMENT DATE: 22 September 2005 JUDGMENT OF: Mason P at 1; Giles JA at 2; Bryson JA at 3 DECISION: Costs orders see paras 7 & 8. CATCHWORDS: COSTS - costs orders on written submissions after judgment [2005] NSWCA 20 - no question of principle. Newcastle City Council - Appellant PARTIES: Roads & Traffic Authority of NSW - Appellant Andrew Batistatos (by his tutor Nita Lavinia Batistatos) - Respondent FILE NUMBER(S): CA 40852/04; CA 40841/04 M.J. Joseph SC - For Newcastle City Council COUNSEL: B. Donovan QC - For Roads & Traffic Authority of NSW. G. Grahame - For Batistatos Phillips Fox - For Newcastle City Council SOLICITORS: I.V. Knight, Crown Solicitor - For Roads & Traffic Authority of NSW T.D. Kelly - For Batistatos LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 21022/94 LOWER COURT JUDICIAL OFFICER: Hoeben J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40852/04 CA 40841/04 MASON P GILES JA BRYSON JA THURSDAY, 22 SEPTEMBER 2005 NEWCASTLE CITY COUNCIL v BATISTATOS; ROADS & TRAFFIC AUTHORITY OF NSW v BATISTATOS Judgment 1 MASON P: I agree with Bryson JA. 2 GILES JA: I agree with Bryson JA. 3 BRYSON JA: These reasons deal with costs in the applications for leave to appeal and appeals which the Court of Appeal disposed of on 12 May 2005 [2005 NSWCA 20]. The Court made directions that questions of costs be decided upon written submissions, which have now been received and considered. 4 Written submissions on behalf of the Roads & Traffic Authority of NSW, the claimant in Summons CA40841/04 made contentions which would have supported more favourable costs orders but stated that RTA is content for orders set out in the written submissions to be made. Written submissions for Mr Batistatos said nothing in opposition, and in my opinion the costs orders proposed by RTA should be made. 5 Proceedings in the Common Law Division relating to Newcastle City Council, the second defendant in proceedings SC 21022/94, did not follow the same course as proceedings relating to the first defendant RTA. NCC applied by Notice of Motion of 6 August 1996 for orders that the proceedings be dismissed or permanently stayed or struck out, and relied on several different bases, which were not all dealt with in the same way. Insofar as NCC relied on s 580(6) of the Local Government Act 1919 (since repealed) Master Harrison declined to dismiss the proceedings against NCC, as the learned Master was of the view that Mr Batistatos had an arguable case that s 580(6) did not apply. That left other bases for the Notice of Motion still to be considered; Master Harrison did not deal with them because of limitations on the powers of Masters. NCC appealed from Master Harrison's decision and that decision was affirmed by Bergin J for reasons published on 4 April 2001. The bases of the Notice of Motion relating to abuse of process were heard by Hoeben J on 25 August 2004 and refused on 3 September 2004. 6 The Court of Appeal's decision was not based upon s 580(6) of the Local Government Act 1919; NCC obtained an order that the proceedings be stayed permanently on other grounds. Mr Batistatos' two successes in resisting summary disposal on the basis of the supposed strength of the defence under s 580(6) did not bring him success in the Notice of Motion overall. In the retrospective view, it was unfortunate and unuseful that so much attention was given to s 580(6) which, although not the sole subject, was the most substantial subject of the applications before Master Harrison and Bergin J. Assuming (as I must), the correctness of the disposition by the Court of Appeal, nothing was achieved by the two hearings relating to s 580(6). In my opinion the just disposition of costs in the Common Law Division is that NCC and Mr Batistatos should each bear its or his own costs of proceedings on the Notice of Motion before Master Harrison and before Bergin J, and that NCC should recover an order for payment by Mr Batistatos of its costs of the proceedings in the Common Law Division, including its costs of the hearing of the Notice of Motion before Hoeben J, with those exceptions. NCC should also recover its costs of the application for leave and of the appeal. 7 The Court of Appeal should make the following orders in proceedings 40841/04:- 1. All costs orders as between the claimant/appellant and the opponent/Respondent in the proceedings below (Supreme Court of NSW, Sydney Registry, Common Law Division, No. 21022 of 1994) be vacated. 2. There be no order as to the costs of the proceedings below, including but not limited to the costs of the Notice of Motion filed by the claimant/appellant on 19 August 1996, and of costs of this appeal as between the claimant/appellant and the opponent/respondent to the intent that they each bear their own costs of the proceedings below, including the Notice of Motion, and of the appeal. 8 The Court of Appeal should make the following orders in proceedings 40852/04:- 1. Set aside orders for costs of Master Harrison, Bergin J and Hoeben J in the Common Law Division as between Newcastle City Council and Andrew Batistatos. 2. Order that the opponent/respondent pay the costs of the claimant/appellant in the Common Law Division with these exceptions: costs of hearings before Master Harrison and before Bergin J; to the intent that each party pay its or his own costs of hearings before Master Harrison and Bergin J. 3. Order that the opponent/respondent pay the costs of the claimant/appellant of the proceedings in the Court of Appeal. *********************** 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.