Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235 Hearing dates: On the papers Decision date: 11 August 2011 Before: Beazley JA at 1; McColl JA at 23; Macfarlan JA at 24 Decision: 1. Set aside that part of order 6 made on 20 April 2011 relating to the costs of the appeal; 2. Order that the first respondent pay one third of the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - costs on appeal - new issues raised on appeal - appellant successful on one only of the principal issues argued - first respondent to pay one third of appellant's costs of the appeal Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Costs Parties: James Norman Barr Rodger (Appellant) Adam Roy De Gelder (First Respondent) Motor Accidents Authority of NSW (Second Respondent) Representation: M A Robinson (Appellant) A C Canceri (First Respondent) Submitting appearance (Second Respondent) Curwoods Lawyers (Appellant) CMC Lawyers (First Respondent) Crown Solicitors Office (Second Respondent) File Number(s): 2009/297971 Decision under appeal Citation: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173 Date of Decision: 2009-12-18 00:00:00 Before: Davies J File Number(s): SC 30018/2009 Judgment 1BEAZLEY JA : The Court gave its principal judgment in this matter on 20 April 2011: Rodger v De Gelder & Anor [2011] NSWCA 97. The Court granted leave to appeal; allowed the appeal; set aside the orders of the trial judge and ordered that the first respondent's summons be dismissed. Relevant to the motion the subject of these proceedings, the Court also ordered the first respondent to pay the appellant's costs at first instance and on appeal (order 6). An order under the Suitors' Fund Act 1951 was also made (order 7). 2By notice of motion filed on 4 May 2011 (as amended on 17 May 2011 to correct an error in the identification of the parties) the first respondent sought the following orders pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 36.16: "1. An order that orders 6 and 7 made by this Court on 20 April 2011 be set aside pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005. 2. An order that the appellant pay the first respondent's costs of the hearing of the summons at first instance or alternatively an order that each party pay their own costs of the hearing of the summons at first instance. 3. An order that the appellant pay the first respondent's costs of the appeal, including any costs associated with the summons for leave to appeal, or alternatively an order that the appellant pay eighty per cent of the first respondent's costs of the appeal, including any costs associated with the summons for leave to appeal. 4. An order that the appellant pay the first respondent's costs of this motion. 5. Further or other order as the Court deems appropriate." 3The parties have filed written submissions and have consented to the application being decided on the papers. The first respondent's submissions 4The first respondent submitted that on the appeal, the appellant raised three principal issues: "(i) whether the trial judge erred in finding that the Proper Officer of the Motor Accidents Authority of New South Wales asked herself the wrong question in deciding whether to refer the matter for further assessment; (ii) whether the trial judge erred in the exercise of his discretion in failing to have regard to the fact that the First Respondent participated in the further medical assessment and sought to have a review of that assessment; and (iii) whether any action taken by the Proper Officer of the Motor Accidents Authority under section 62 of the Motor Accidents Compensation Act 1999 (MACA) involved the making of a decision that was amenable to judicial review." 5As to the first issue, the first respondent submitted that the appellant conceded in the Court below that the Proper Officer had asked herself the wrong question. The first respondent submitted in respect of the second issue that the appellant raised on the appeal for the first time the issue of election and acquiescence. He submitted that a substantial part of the written submissions of both parties were dedicated to addressing that question. The same submission was made in respect of the third issue. 6The appellant disputed the first respondent's contention made in respect of each of these issues. In particular, the appellant denied that he retracted a concession made at first instance and disputed that a substantial part of the hearing was taken up with the second and third issues. The 'concession' question 7On the hearing of the appeal, the first respondent argued that the appellant had conceded that the Proper Officer had asked herself the wrong question in determining whether to refer the first respondent's claim for further assessment. He argued that the appellant should not be permitted to raise that matter on the appeal. The Court did not accede to the first respondent's submission. 8In its judgment at [40]-[43], the Court dealt with whether the right question had been asked and whether the appellant had made any concession as alleged, as follows: "40 Mr Rodger submitted that his Honour, in identifying the question in the terms he did, misconstrued what the Proper Officer had said in the letter of 28 November 2008. He submitted that contrary to his Honour's understanding, the statement in the letter, that the information may have a material effect on the outcome of the application, was a reference to the outcome of the referral for medical assessment. In other words, the Proper Officer was plainly asking herself whether the additional information may have a material effect on the outcome of the existing medical assessment, which was the matter that had to be determined under s 62. 41 Mr De Gelder argued that Mr Rodger should not be permitted to argue this issue on appeal as it had been conceded in the Court below that the Proper Officer had asked the wrong question: see Robinson v Campbell (No 2) (1992) 30 NSWLR 503. Mr Rodger did not accept that any such concession was made. It is necessary in the first instance, therefore, to determine whether the concession was made. 42 At trial, Mr Rodger acknowledged that there was a difficulty with the language of cl 14.7 in that it did not reflect the statutory language of s 62. However, Mr Rodger refrained from answering the submissions made in the Court below by the Authority, which had contended that there was no difference of substance between the language used in s 62 and cl 14.7 respectively, so that the Proper Officer must have applied the correct statutory test. The transcript reveals that Mr Rodger's argument was that even if the Proper Officer asked the wrong question, that was not sufficient for the grant of prerogative relief. 43 It is arguable that by formulating his argument that way, Mr Rodger may have impliedly made the concession as submitted by Mr De Gelder. However, the construction of the Proper Officer's letter had been raised by the Authority and so was before his Honour for consideration. Mr De Gelder made submissions in respect of that question. In those circumstances, there is no restraint on the Court in now determining the matter, even if Mr Rodger has shifted position on this issue. Robinson v Campbell (No 2) , upon which Mr De Gelder relied, was different, in that the argument sought to be raised in that case on appeal had not been argued in the Court below at all and the Court applied the principles in Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418." 9As these paragraphs in the principal judgment indicated, the question whether the appellant had made such a concession was not relevant on the appeal. Nor did the Court find the concession had been made, although the Court accepted that a concession may have been made implicitly. The Court further held that even if that was so, the question whether the Proper Officer had asked herself the wrong question had been in issue in the Court below and fully argued. Accordingly the concession, if any, was not such as to preclude the appellant relying on the 'proper question' issue, nor was the Court precluded from giving consideration to that issue: see principal judgment at [44]. 10Accordingly, the first respondent was unsuccessful on the 'concession' question. The acquiescence and election issue 11During the hearing of the appeal, there was a dispute between the parties as to whether the issues of acquiescence and election had been raised at trial. Neither party adduced evidence to support his respective stance. However, the appellant's written submissions in the Court below were said by the appellant to raise those questions. 12The Court did not accept that this was so: see principal judgment at [96] as follows: "96 In my opinion, these submissions do not raise the questions of acquiescence and election in the manner in which they are now sought to be argued. Rather, they are directed to the statutory mandate for the early resolution of claims, which was correctly understood by his Honour to be a submission in relation to delay. In the normal course, I would not have allowed the questions of acquiescence and election as argued by senior counsel for Mr Rodger to be raised on the appeal. However, as I have fully dealt with those questions, I reject Mr Rodger's challenge to his Honour's exercise of discretion on the basis that even had they been raised at trial, they would have been decided adversely to Mr Rodger." 13The appellant's updated written submissions filed in this Court on 12 July 2010 comprised ten pages and, relevantly, 36 paragraphs. Of those submissions, the first four paragraphs were by way of background. Paragraphs 5(a), 9-26 and 32-36 related, directly or indirectly, to the acquiescence and election argument. Paragraphs 5(b), 27 and 30-31 dealt with the 'wrong question' issue. Paragraphs 28-29 dealt with the availability of certiorari having regard to the decision in Singh v Motor Accidents Authority of NSW [2010] NSWSC 550. 14The respondent's written submissions comprised just over 13 pages and, relevantly, 31 paragraphs, paras 1 and 34-35 being preparatory or conclusory. Paragraphs 2-19 dealt with the acquiescence and election issue. Paragraphs 20-22 dealt with the 'wrong question' issue. Paragraphs 23-26 dealt with the certiorari issue. 15So far as the length of argument on these two questions was concerned, the transcript reveals that counsel for the appellant addressed on the acquiescence and election issues for about five pages of transcript (Tr 23, line 32 to Tr 28, line 23). The major part of the argument (Tr 1-23) involved counsel dealing with the legislation and the evidentiary features of the case, both of which were relevant to the acquiescence and election issues, but not exclusively so. The first respondent's submissions on the acquiescence and election issue took up about two and a half pages of the transcript. 16As for the third point, neither party made detailed submissions, notwithstanding that the matter required detailed consideration by the Court: see principal judgment at [53]-[71]. Conclusion 17The first respondent's submission that the second and third issues were raised for the first time on appeal is correct. The appellant was unsuccessful on both those issues. The length of written or oral submissions of itself is not determinative of the complexity of an issue, the time reasonably required for the preparation of argument (written or oral) on an issue, the proportion of the written submissions that ought to be allocated to the issue or the appropriate time to devote to an issue in oral argument. In this case, a substantial portion of the written submissions of both parties was devoted to the acquiescence and election issues. 18The time that these issues occupied in oral argument did not represent the greater part of the appeal hearing. That is understandable, given the focus on those matters in the written submissions. However, they were legally complex and were discrete issues upon which the appellant failed. 19I consider that, in the exercise of discretion, the appellant should not have the entirety of his costs of the appeal. I consider, however, that the appellant should have part of his costs, as the order made by the trial judge was, as the Court's decision demonstrated, erroneous and the appellant was required to appeal to have the error corrected. He was successful on the appeal in having the trial judge's order reversed, albeit that he was unsuccessful on two out of three issues. 20In the circumstances, a fair order in the exercise of the Court's discretion is that the first respondent pay one third of the appellant's costs of the appeal. 21There is no reason, however, as to why the appellant should not have his costs in the Court below. The correct result in the Court below was that the summons be dismissed. The appellant resisted the first respondent's summons in the Court below. In the ordinary course, the appellant would have had a costs order in his favour in the Court below had the trial judge not erred as this Court found. Nothing in the first respondent's submissions have persuaded me otherwise. There is no good reason to deprive the appellant of the costs at first instance. 22Accordingly, the orders I propose are: 1. Set aside that part of order 6 made on 20 April 2011 relating to the costs of the appeal; 2. Order that the first respondent pay one third of the appellant's costs of the appeal. 23McCOLL JA : I agree with Beazley JA. 24MACFARLAN JA : I agree with Beazley 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. Decision last updated: 11 August 2011