Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Priestley JA Sperling J

Thursday, 6 December 2001 40935/99 Gillard v Hunter Wire Products

Judgment No.2 1 THE COURT: This judgment determines cross applications for the costs of an application for leave to appeal. 2 On 19 November 1999, the appellant, as plaintiff, was awarded damages for personal injury in proceedings in the District Court. 3 On 2 December 1999 the appellant filed an application for leave to appeal against the assessment of damages. The application came on for hearing before this Court on 23 October 2000. On the material then available, it appeared to the Court that an appeal might lie as of right. Accordingly, the Court directed the appellant to file a notice of appeal and an application for leave to appeal out of time, and further directed that the two applications (for leave to appeal and for leave to appeal out of time) be listed for hearing with the appeal. 4 The appeal was heard by us on 6 September 2001. On 1 November 2001, we gave judgment. We decided that the components in the judgment below for past and future economic loss should be increased, respectively from $30,000 and $50,000 to $81,835 and $156,600, with a consequential increase in the components for superannuation loss and for interest. The latter components were calculated by the parties' legal representatives. On 8 November 2001, orders were made increasing the damages awarded from $166,045 to $354,636, an increase of $188,591. 5 It was on the last occasion that cross applications were made for the costs of the application for leave to appeal. Counsel provided written submissions in support of their respective positions. 6 No oral argument was presented on the hearing of the appeal in relation to the application for leave to appeal or the application for leave to appeal out of time. The only thing said in that regard appeared in the respondent's written submissions, filed in the appeal: 1.1 The Respondent submits that Leave to Appeal the Award of Damages in the Court below ought not to be granted. 1.2 In the event that the Court finds that the Appellant does not require Leave to Appeal, or in the event Leave to Appeal is granted, the Respondent does not oppose the Appellant's application for an extension of time to appeal. 7 The Court has not made any determination of either application. There was no need to do so in relation to the application for leave to appeal, because the result demonstrated an entitlement to appeal as of right. There was no need to do so in relation to the application for leave to appeal out of time, because (as appears from the respondent's written submissions) the respondent took no point in that regard. 8 In these circumstances, it is necessary to decide the cross applications for the costs of the application for leave to appeal on a notional basis of the result if the application for leave to appeal had been determined by us on the hearing of the appeal. 9 At this stage it is necessary to record the provisions of s127 of the District Court Act 1973: (1) A party who is dissatisfied with a Judge's judgment or order in an action may appeal to the Supreme Court. (2) The following appeals lie only by leave of the Supreme Court: (a) an appeal from an interlocutory judgment or order, (b) an appeal from a judgment or order as to costs only, (c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more, (d) an appeal from a judgment or order on an application for summary judgment under the rules. (3) In any other case, an appeal lies as of right. 10 Leave is required in relation to a final judgment or order unless the appeal involves a matter at issue or a claim, demand or question amounting to or of the value of $100,000 or more. Accordingly, an appellant appealing against quantum of damages has an appeal as of right if the amount "at issue" on appeal exceeds $100,000. Otherwise, leave to appeal is required.

11 What then is meant by "at issue" on appeal? The legislature cannot have meant whatever variation from the judgment below might be claimed on appeal. Were that so, an appellant appealing against quantum of damages would have an appeal as of right merely by claiming $100,000 more or less (as the case may be) than the damages assessed below, irrespective of merit. The phrase "at issue" must be construed as meaning truly at issue or, inversely, not unrealistically at issue. 12 It follows that an appellant, appealing against quantum of damages, has an appeal as of right if there is a realistic prospect of changing the result by $100,000 or more. Otherwise leave is required. 13 In the present case that there was such a realistic prospect is established by the result of the appeal. There having been an appeal as of right, the application for leave to appeal should, accordingly, be treated as notionally dismissed. 14 Notwithstanding the general rule that costs follow the event, the appellant would have an argument for costs of the application if there was a reasonable possibility that leave might be required. The costs would then be justly treated as part of the appellant's costs of the appeal. But, in the present case, there was not, in our view, any reasonable possibility, at the time when the application was filed, that it might be held, on a hearing of the application, that the amount realistically in issue on appeal was less than $100,000. 15 It follows that the appellant should not have the costs of the application as part of the appellant's costs of the appeal, and that the respondent should have the costs reasonably incurred by it in relation to the application. 16 All of the respondent's costs in relation to the application were not reasonably incurred. Objectively, the appellant had an appeal as of right when the application was filed. That should have been as apparent to the respondent's legal advisers as to the appellant's. The respondent's legal advisers should, accordingly, have informed the appellant's legal advisers, once they had had the opportunity of considering the merits of the application, that leave to appeal would be conceded. The costs of the interlocutory hearing on 23 October 2000 would then have been avoided. 17 This approach conforms with precedent. In Carolan v AMF Bowling Pty Ltd (NSWCA, 16 November 1995, unreported), the application was for costs of defending an appeal dismissed as incompetent because leave was required and there was no ground for leave. Kirby P said: Ordinarily where application for leave is refused the claimant must pay the costs of the opponent. That is simply the consequence of the ordinary rule governing costs in this Court. But this case has some special features. Where the notice of appeal was filed, the solicitor for the claimant filed an affidavit in which he baldly asserted that his client had a ground for an appeal as of right upon the footing that in the original summons in the District Court, a sum of $100,000 was claimed in respect of the injury suffered by the claimant. That statement was, on its face, a mis-statement of the correct legal position. A reasonably competent lawyer, defending the interests of the opponent, would have drawn that mis-statement to the attention of the solicitor for the claimant. If doing so had not caused the incompetency of the appeal to be noticed and the reconstruction of the proceedings, the solicitor for the opponent would then have advised the opponent and taken steps in this Court to have the purported notice of appeal struck out on the footing that the appeal was incompetent. None of this was done. The matter was simply allowed to sail on to its hearing date today, more than three years later. [Emphasis added.] 18 In these circumstances, the order should be that the respondent should have the costs of the application for leave to appeal except for the costs of and incidental to the interlocutory hearing on 23 October 2000, such exempted costs to include the costs of the respondent's solicitor attending court on that date, the costs of briefing counsel on the application and counsel's fee on the hearing of the application. 19 The respondent not having been fully successful in the application for costs of the application for leave to appeal, any costs incurred exclusively in relation to such application for costs should not be included in the defendant's costs of the application. Each party should be left to bear his and its own costs incurred exclusively in relation to the application for the costs of the application for leave to appeal. 20 Accordingly, the following orders should be made:

(1) The appellant is to pay the respondent's costs of the application for leave to appeal, except for the costs of and incidental to the interlocutory hearing on 23 October 2000, such exempted costs to include the costs of the respondent's solicitor attending court on that date, the costs of briefing counsel on the application and counsel's fee on the hearing of the application;

(2) The court makes no order for the costs incurred by either party exclusively in relation to the application for the costs of the application for leave to appeal, thus leaving each party to bear his and its own such costs. -o0o-

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