Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pioneer Studios Pty Ltd v Hills (No 2) [2013] NSWCA 1 Hearing dates: On the papers Decision date: 31 January 2013 Before: Allsop P at [1] Basten JA at [15] Hoeben JA at [16] Decision: 1.Vacate order (4) made by the Court on 26 September 2012 and in lieu thereof order: (4) Subject to order (5) the respondent pay the appellant's costs of the appeal (5) The appellant pay 25% of the costs of the preparation of the respondent's written submissions dated 24 August 2012. [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: PROCEDURE - costs - claim under Workers Compensation Act - whether successful appellant entitled to recover full costs where major ground abandoned before hearing - allowance for costs thrown away Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 Category: Costs Parties: Pioneer Studios Pty Ltd (Appellant)Kathryn Hills (Respondent) Representation: Counsel: L King SC (Appellant)B J Gross QC and S B Dixon (Respondent) Solicitors: Bartier Perry (Appellant)Carroll & O'Dea (Respondent) File Number(s): 2011/208280 Decision under appeal Citation: [2011] NSWWCCPD 30 Date of Decision: 2011-06-01 00:00:00 Before: Roche DP File Number(s): WCC 6838-2010 Judgment 1ALLSOP P: On 26 September 2012 the Court made orders allowing the appeal, setting aside the decision of the Workers Compensation Commission and remitting the matter for rehearing. The respondent was ordered to pay the costs of the appeal. 2On 10 October 2012, the respondent filed a notice of motion seeking orders in substance that the costs order made be varied such that each party bear its and her own costs of the appeal. 3On the assumption that the orders were entered on 26 September, the respondent was within time to file the motion, the last day of the 14 days for the purposes of Rule 36.16. 4The submissions of the respondent focused on the fact that the appellant had, in submissions in December 2011, relied on the High Court decision in Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 ("Tasty Chicks") for the proposition that the appeal to this Court under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), (the "WIM Act"), s 353 was not restricted to points of law. 5This assertion, not supported by detailed reasoned submissions, caused me on 14 May 2012 in setting the June list to vacate a hearing date that had been set for 20 June 2012 in order that a five Judge bench could be organised to hear the appeal. 6Senior counsel for the respondent has stated in a letter to the Registrar that he undertook in excess of three full days of research to prepare himself for the anticipated point. It is not evidence, but for the limited purpose of this argument, I am prepared to accept it. The place of Tasty Chicks in the scheme of this Court's jurisprudence on statutory appeals under variously worded submissions is not straightforward. The respondent's submissions filed on 24 August 2012 dealt with Tasty Chicks at length. 7The appellant filed supplementary written submissions on 3 September 2012, withdrawing the Tasty Chicks point. No detailed submissions in support of it were ever filed. New senior counsel took the view that the point was without merit. 8When the abandonment was made known to the Court a three (not five) Judge bench sat. 9The respondent submitted that the appropriate order is that each side pay its and her own costs. 10The appellant disputed that its written submissions were based on Tasty Chicks. That may be, but it is undoubtedly the case that the Court and the respondent were told that the appellant would rely on Tasty Chicks as a foundation for the rejection of earlier Court of Appeal authority limiting the nature of the appeal. Respondent's senior counsel took these assertions seriously as he was entitled, and obliged, to do. 11In my view, a case has been made for the variation of the costs orders to take some reasonable account of the assertion clearly made by the appellant of reliance on Tasty Chicks. The fairest way to do this is to order that the appellant pay a reasonable proportion of the costs of the respondent in the preparation of written submissions she filed in August. That order would be directed to the preparation in particular of paras 1 - 27 of those submissions. 12An order fairly reflecting the waste of effort by the respondent would be that the appellant pay one quarter of the costs of preparing the written submissions of the respondent dated 24 August 2012. 13I propose the following orders: Vacate order (4) made by the Court on 26 September 2012 and in lieu thereof order: (4) Subject to order (5) the respondent pay the appellant's costs of the appeal (5) The appellant pay 25% of the costs of the preparation of the respondent's written submissions dated 24 August 2012. 14Absent agreement of the parties the calculation of the appropriate amount of costs for the submissions (and thus 25% of them) will be a matter for the assessment process. 15BASTEN JA: I agree with Allsop P. 16HOEBEN JA: I agree with Allsop P. ********** 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: 31 January 2013