Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2) [2013] NSWCA 39

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2) [2013] NSWCA 39 Hearing dates: 25 February 2013 Decision date: 25 February 2013 Before: Allsop P at [1], [8], [13], [21] Meagher JA at [6], [11], [19] Ward JA at [7], [12], [20] Decision: Notice of Motion filed 14 February 2013 by Ms Blackburn 1. The orders of the Court of 11 February 2013 be amended to insert order 5A after order 5 in the following form: "The second respondent (State of New South Wales) pay one third of the appellant's (Ms Blackburn's) costs of the appeal." 2. Order that the State of New South Wales pay Ms Blackburn's costs of the motion filed on 14 February 2013. Notice of Motion filed 15 February 2013 by the State of New South Wales 1. Vary order B(4) of the orders of the Court made on 11 February 2013 by rescinding order B(4) and in its place order as follows: "B(4). Dismiss the appeal with costs on the following basis: (a) Mr Withyman pay the costs of the State of New South Wales on an ordinary basis up to and including 28 July 2011; and (b) Mr Withyman pay the costs of the State of New South Wales on an indemnity basis thereafter." 2. Order that Mr Withyman pay the State of New South Wales' costs of the motion filed 15 February 2013. Notice of Motion filed by Mr Withyman on or about 20 February 2013 1. Vary order C made by the Court on 11 February 2013 by adding after the existing order C the following: "The cross-applicant (State of New South Wales) pay the first cross-respondent's (Mr Withyman's) costs of the application for leave to appeal." 2. Order that the State of New South Wales pay Mr Withyman's costs of this motion. [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 - no question of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: David Morris Withyman (by his tutor Glenda Ruth Withyman) (Appellant in 2008/317901; First Respondent in 2011/219978; First Cross-Respondent) Anna Lucinda Blackburn (Second Respondent in 2008/317901; Appellant in 2011/219978; Second Cross-Respondent) State of New South Wales (First Respondent in 2008/317901; Second Respondent in 2011/219978; Cross-Appellant) Representation: S Norton SC and R J A Sergi (Withyman) J M Morris (Blackburn) A R Moses SC and A B Parker (State of New South Wales) Kenny Spring Solicitors (Withyman) A R Connolly & Co (Blackburn) Hicksons Lawyers (State of New South Wales) File Number(s): 2008/317901; 2011/219978 Decision under appeal Citation: [2010] NSWDC 186 Date of Decision: 2010-09-01 00:00:00 Before: Elkaim SC DCJ File Number(s): 2008/317901