Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 180

New South Wales Supreme Court

CITATION : Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 180

HEARING DATE(S) : Heard on the papers

JUDGMENT DATE : 6 March 2008

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Plaintiff to pay defendant's costs

CATCHWORDS : Costs - Principles - Statutory Construction

LEGISLATION CITED : Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW)

Latoudis v Casey (1990) 170 CLR 534 Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72 Ruddock v Vadarlis (No 2) (2001) 188 ALR 143 Wentworth v Rogers [2003] NSWSC 944

PARTIES : Racing NSW (Plaintiff) NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 (Defendant)

FILE NUMBER(S) : SC 50123/07

COUNSEL : Mr N Hutley SC, Mr J Catsanos, Ms M Allars (Plaintiff) Mr GJ Parker, Mr P Khandhar (Defendant)

SOLICITORS : Maurice Blackburn Cashman (Plaintiff) Turkslegal (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Thursday 6 March 2008

50123/07 Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 JUDGMENT Dealing with costs 1 The reserved judgment in these proceedings was delivered on 31 January 2008 [2008] NSWSC 6. The parties have both addressed on costs. The principles 2 The "ordinary approach", reflected in rule 42.1 of the Civil Procedure Rules 2005 (NSW), is that costs follow the event "unless it appears to the court that some other order should be made". 3 The ordinary approach is consistent with the observation of the High Court of Australia in Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 that, as "a general rule", "a wholly successful defendant should receive his costs unless good reason is shown to the contrary". 4 I accept that the ordinary approach is merely a "general rule" and should not be confused with the existence of an absolute entitlement or right on the part of the successful party – an order in respect of costs is discretionary (Wentworth v Rogers [2003] NSWSC 944 at [33], citing the decision of Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at [35]). 5 Further, there are well-recognised exceptions to the ordinary approach in circumstances where the successful party has been guilty of some sort of "misconduct" in relation to the litigation or the circumstances leading up to the litigation. In particular, "the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation" (per McHugh J in Oshlack at [69]). 6 In Oshlack, his Honour further noted (at [80]) the view of the majority in Latoudis v Casey (1990) 170 CLR 534 that the court should start from the proposition that a successful party to litigation can usually expect to receive a costs award in its favour unless its own conduct disentitles it from the benefit of the discretion. Basis for the ordinary approach 7 The basis for the ordinary approach of awarding costs to a successful party was considered in Latoudis. Relevantly, Mason CJ stated (at 543):