NSW Rifle Association Inc v The Commonwealth of Australia (No. 2) [2012] NSWSC 1098

Supreme Court New South Wales

Medium Neutral Citation: NSW Rifle Association Inc v The Commonwealth of Australia (No. 2) [2012] NSWSC 1098 Hearing dates: 6 September 2012 Decision date: 14 September 2012 Jurisdiction: Equity Division Before: White J Decision: Order that the Commonwealth's notice of motion filed on 27 July 2012 be dismissed. Catchwords: COSTS - exception to the general rule that costs follow the event - application that costs order be set aside and new order made in accordance with provisions of clause of licence - whether respondent liable to pay costs notwithstanding it was successful in litigation - whether court's discretion to order costs should be exercised to give effect to parties agreement - Civil Procedure Act 2005 (NSW), s 98 - contractual provisions not plain and unambiguous

PRACTICE AND PROCEDURE - conduct of litigation - where claims not pleaded - public interest in finality of litigation - held costs order should not be reopened Legislation Cited: Civil Procedure Act 2005 Cases Cited: NSW Rifle Association Inc v The Commonwealth of Australia [2012] NSWSC 818 Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 Taree Pty Ltd v Bob Jane Corporation Pty Ltd [2008] VSC 228 Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 Wentworth v Rogers [2002] NSWSC 921 De L v Director-General, NSW Department of Community Services [1996] HCA 5; (1996) 187 CLR 640 Abigroup Limited v Sandtara Pty Ltd [2002] NSWCA 45 Watson Wyatt Superannuation Pty Ltd v Oberlechner [2008] NSWSC 272 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Category: Costs Parties: NSW Rifle Association Inc (Plaintiff) The Commonwealth (Defendant) Representation: Counsel: R J Ellicott QC with N Kabilafkas (Plaintiff) B R McClintock SC with B D Kaplan (Defendant) Solicitors: Hunt & Hunt (Plaintiff) Ashurst (Defendant) File Number(s): 2011/393228 2012/41950