New South Wales Court of Appeal CITATION: State of NSW v Elms (No 2) [2008] NSWCA 158 HEARING DATE(S): 18 June 2008 JUDGMENT DATE: 18 June 2008 JUDGMENT OF: Beazley JA at [6], [8]; Giles JA at [7]; Hodgson JA at [1] EX TEMPORE JUDGMENT DATE: 18 June 2008 DECISION: No variation made to costs orders in earlier judgment [2008] NSWCA 157. CATCHWORDS: PRACTICE – Costs – Whether reasons to depart from usual order. CATEGORY: Consequential orders PARTIES: STATE OF NEW SOUTH WALES (Claimant/Appellant) Brian ELMS (Opponent/Respondent) FILE NUMBER(S): CA 40572/07 COUNSEL: P MENZIES QC/ D MALLON (Claimant/Appellant) B TOOMEY QC/ D J PRICE (Opponent/Respondent) SOLICITORS: McCabe Terrill Lawyers (Claimant/Appellant) Phillip Sim & Associates (Opponent/Respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40572/07 BEAZLEY JA GILES JA HODGSON JA 18 JUNE 2008 STATE OF NEW SOUTH WALES v Brian ELMS Judgment 1 HODGSON JA: Following the delivery of the judgment that the Court has just given, there have been applications concerning costs. 2 The claimant has sought costs on an indemnity basis on the basis of offers made prior to the hearing. In my view, those offers were not strictly compromise offers and do not in any event completely cover what was decided by this Court. The offers still placed emphasis on a statement of claim and material facts, whereas the judgment of this court has focused rather on the definition of issues in such a way as to enable a judgment to be made whether there can be an acceptably fair trial. For those reasons, I do not think any ground is made out for making any indemnity costs order. 3 There has been an application by the opponent based on a contention that the grounds of appeal were wider than those on which the matter was determined and that the opponent was put to expense in seeking to deal with those wider grounds. 4 In my view, consideration of the grounds of appeal and the written submissions prepared by the parties do not suggest that there has been any identifiable element of costs thrown away by reason of the way the appeal grounds were drafted, in the light of the way the court decided the case. 5 For those reasons, I do not see a basis for varying the costs orders proposed in the earlier judgment. 6 BEAZLEY JA: I agree. 7 GILES JA: I also agree. 8 BEAZLEY JA: The orders of the court are those originally proposed by Justice Hodgson. oOo 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.