Van Huisstede and the Commissioner of Police (No.2) [2001] NSWIRComm 139

Van Huisstede and the Commissioner of Police (No.2) [2001] NSWIRComm 139 - NSWIRComm 1993 case summary — Zoe

Despite certain decisions (referred to by Hill J in Boner v Anderson (No 2)) to the effect that there should be an increased tendency towards the awarding of indemnity costs, we consider that there is still in existence and operation a general approach to the effect that costs will be normally awarded on a party-party basis with indemnity costs to be awarded in the more exceptional case where conduct of a party justifies it. Hill J referred to those matters this way: ... a case in which there are special or unusual features of an unmeritorious or improper nature surrounding the case of one party (usually the loser) which make it unreasonable and unfair that the successful party should be out of pocket as a result of the proceedings. The view of Morling J in Tobacco Industry Case, consistently with our thinking, was that fierce opposition to the claim was insufficient to ground indemnity costs; something more is needed. It seems to us that findings that the applicant should succeed under s 106 with respect to conduct which is unfair, harsh or unconscionable would be insufficient to meet that test. Further, the fact that the respondent has acted in a way which justifies the application of the section would equally be insufficient. 31 Lastly, on the question of general principles, I should refer to a passage relied upon by the applicants in the recent judgment of Greg James J in Lolomanaia v Roads and Traffic Authority [2000] NSWSC 780 at [22]. Although his Honour was dealing with a slightly different matter, that is, the question of the extent of indemnity provided by indemnity costs, his Honour did, however, make an important observation in these terms: It is clear that costs on an indemnity basis have increasingly more frequently become available and that, although generally costs should not be seen as a punishment of an unsuccessful party, either when they are awarded or in the extent to which they [are] awarded, regard must be had to the principle that costs operate by way of compensation to the successful party for what has had to be incurred in successfully asserting that party's rights in court. It must be noted that indemnity costs are limited to those costs which are reasonably incurred in prosecuting the proceedings to a successful conclusion. Costs on an indemnity basis merely restore fully the successful party's position.

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