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Costs in appeals said to raise a matter of public importance to only one of the parties May 28, 2016


State of New South Wales v Williamson [2011] NSWCA 183

Hodgson JA:

[10] That “one matter” is that the Respondent submits that any grant of leave should be made conditional on the Applicant paying the Respondent’s costs in any event, and on the Applicant not seeking to disturb the costs order in the Supreme Court below. The Respondent submits that, for the Applicant, this is a test case, the resolution of which is highly desirable to it as a very large and recurrent litigant in damages claims founded on intentional torts. The Respondent submits that the Applicant is prosecuting this appeal to vindicate its commercial interests, because success will reduce the quantum of costs that it is obliged to pay to successful plaintiffs on damages claims founded on intentional torts. By contrast, the Respondent is a young man who is not a recurrent litigant. The Respondent submits that a condition of leave such as it proposes is consistent with the reasoning of Gleeson CJ, Gummow and Heydon JJ in CSR Ltd v Eddy[2005] HCA 64 ; (2005) 226 CLR 1 at [80]–[81].

[11] The Applicant does not oppose that course. This stance of the Applicant makes it unnecessary to consider the applicability of factors identified by Basten JA in NSW v Corby [2010] NSWCA 27 ; (2010) 76 NSWLR 439 at [9] that might lead to the court in any event deciding to impose such a condition. Leave should be granted on the terms the Respondent proposes. I should henceforth refer to the Applicant as the Appellant.


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