6 The first involve costs incurred up to 14 August 2007, on which day the Chief Judge made an order that the fourth to twenty-sixth defendants be joined as additional defendants. In respect of those costs, the defendants contend that the plaintiff ought to be ordered to pay the costs of their solicitors Maurice Blackburn Cashman as amicus curiae.
7 The steps taken during that period - which were largely successful - on the part of Maurice Blackburn Cashman, for the benefit of the fourth to twenty-sixth defendants, were calculated to procure appropriate notification to the present and former employees, some of whom ultimately became the fourth to twenty-sixth defendants in the proceedings. Those steps were calculated to bring about steps which were necessary - and which the plaintiff ought originally to have taken in any event - to notify potentially affected parties. I do not think, and Mr Jackman SC for the plaintiff did not submit, that it was appropriate that the relevant defendants be ordered to pay costs prior to the date of their joinder on 14 August. On the other hand, I am unpersuaded that the well- intentioned efforts of Maurice Blackburn Cashman for the benefit of their ultimately unsuccessful clients ought be remunerated by a costs order against the ultimately successful plaintiff. They were not required to take the steps that they did, and had the plaintiff taken them of its own motion, they would have faced part of the plaintiff's costs in the proceedings. Although it may be that the Court can make an order in favour of a non party, that is an exceptional course, and there are insufficient grounds to adopt it here.
8 Accordingly, in respect of the costs up to 14 August, there will be no order as to costs, to the intent that each party bear its own costs.
9 On 14 August, the order was made joining the fourth to twenty-sixth defendants. They brought, and succeeded on, the application to be joined as defendants. On that event they succeeded, and in respect of that application, the ordinary rule would dictate that the plaintiff should pay their costs of the application for joinder.
10 The third category arises from the next step in the proceedings, which involved the plaintiff's motion for expedition. Although that motion was opposed and did not initially succeed [MetLife Insurance Limited v Visy Board Pty Limited [2007] NSWSC 1168], nonetheless the plaintiff obtained a much earlier hearing than would otherwise have been the case and did so only because of the application for expedition. The steps taken on the motion for expedition ought be regarded as steps reasonably taken in the bringing and management of the proceedings towards a hearing, and should be treated as costs in the proceedings generally.
11 The fourth category of costs are those involved with preparation for and the conduct of the hearing including discovery. As Mr Montgomery for the defendants submits, there would have had to be a hearing in this proceeding in any event - the consent of the first, second and third defendants notwithstanding - to persuade the Court as a matter of discretion that rectification was appropriate; but the hearing would probably have been a very much shorter one than that which ultimately took place. Against that has to be borne in mind that the relief ultimately obtained by the plaintiff was different in a significant respect from that which it sought, in that although the plaintiff proposed a term which would have enabled the insurer to determine in its own discretion when the test of total and permanent disablement was satisfied, the Court's decision was to the effect that that was to be decided objectively, and not by the insurer as a matter of discretion. Yet again, against that, it is to be observed that that particular issue did not occupy a significant part of the evidence in argument at the hearing.
12 Further, as Mr Jackman SC points out, the costs of discovery would probably not have been incurred but for the intervention. Adopting Debelle J's "broad axe approach", and weighing these various considerations - namely, the increase in costs occasioned by the intervention, against the impact that the intervention had on the extent of relief that the plaintiff gained, and the assistance which the intervention afforded the Court - it seems appropriate to regard the net increase in overall costs after offsetting the benefits of those matters as being worth about 35 per cent of the total costs of and associated with the final hearing.