Acquilina v Dairy Farmers Co-Operative Milk Co Ltd

Judgment 1THE COURT: On 5 April 2012 the Court (Campbell JA and Tobias AJA jointly, McColl JA agreeing) allowed an appeal from orders made by Slattery J on 5 May 2010 and made consequential declarations and orders including an order that the respondents to the appeal, Castle Constructions Pty Ltd (Castle) and the Registrar-General, pay the appellant's (Sahab) costs thereof. It granted Castle a certificate under the Suitors' Fund Act 1951 (NSW) (the Act) with respect to the costs of the appeal if otherwise entitled. 2On 7 September 2012 Castle was granted leave by the High Court to appeal this Court's decision. Sahab was named as first respondent to that appeal and the Registrar-General the second respondent. On 10 April 2013 the High Court allowed the appeal and set aside the orders of this Court made on 5 April 2012: Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149. It ordered Sahab to pay the costs of Castle and the Registrar-General both in this Court and in the High Court. 3By notice of motion filed on 14 March 2014 Sahab seeks a certificate or certificates under the Act with respect to the costs it has been ordered to pay to Castle and the Registrar-General both in this Court and the High Court. The application was supported by an affidavit of Kenneth Kanjian, a director of Sahab, sworn 13 March 2014. The Court was constituted for present purposes by two of the judges of the Court who determined the appeal from the judgment of Slattery J together with Macfarlan JA, Campbell JA having since retired. 4The power to grant such a certificate is to be found in s 6 of the Act which relevantly provides as follows: "(1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or (b) to the High Court from a decision of the Supreme Court on a question of law, succeeds, the Supreme Court may, on application, grant to the respondent to the appeal ... an indemnity certificate in respect of the appeal." 5Section 6(2) makes provision for where there is a sequence of appeals, an expression defined in s 2 of the Act to mean a sequence of appeals in which each appeal that follows next after another appeal in the sequence is an appeal against a decision in that other appeal. Section 6(2) provides, relevantly: "Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund: (a) an amount equal to the appellant's costs of: (i) the appeal in respect of which the certificate was granted, and also (ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted, ordered to be paid and actually paid by the respondent ..." 6Sahab submits and we accept that: