MAHENTHIRARASA v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) [2008] NSWCA 201

Reported Decision: 72 NSWLR 273

New South Wales Court of Appeal

CITATION: MAHENTHIRARASA v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) [2008] NSWCA 201

HEARING DATE(S): 18 February 2008

JUDGMENT DATE: 21 August 2008

JUDGMENT OF: Giles JA at 1; Basten JA at 2; Bell JA at 27

Add to the orders made by this Court on 21 May 2008 the following: DECISION: (6) Set aside orders (2) and (3) made by the primary judge on 9 February 2007; (7) Order the first respondent (the State Rail Authority) to pay the appellant's costs of the proceedings in the Common Law Division and in this Court on the usual basis.

CATCHWORDS: COSTS – judicial review proceedings – whether costs follow the event –respondent submitting "save as to costs" – whether respondent required to act as model litigant – whether just and reasonable for respondent to pay part or whole of costs of successful applicant – Civil Procedure Act 2004 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) rr 6.11, 42.1 - STATE OWNED CORPORATION – State Rail Authority – functions of State Rail Authority – State Rail Authority as part of the executive government – application of model litigant principles – State Revenue and Other Legislation Amendment (Budget) Act 2007 (NSW) Schedule 4[11] – Transport Administration Act 1988 (NSW) s 4, Schedule 8 - WORDS & PHRASES – "model litigant"

Civil Procedure Act 2005 (NSW), s 98 Judiciary Act 1903 (Cth), s 55ZF State Revenue and Other Legislation Amendment (Budget) Act 2007 (NSW), Schedule 4 [11] LEGISLATION CITED: Supreme Court Rules 1970 (NSW), Pt 52A, r 12 Transport Administration Act 1988 (NSW), s 4, Schedule 8, cll 1, 3(1) Uniform Civil Procedure Rules 2005 (NSW), r, 6.11, Pt 42, r 42.1 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327