Port Stephens Council v Theodorakakis (NO 2) [2006] NSWCA 143

Port Stephens Council v Theodorakakis (NO 2) [2006] NSWCA 143

By majority, the claimant's application for leave to appeal was necessary if the claimant's case was to be advanced at all and was fairly arguable, although unsuccessful. Its failure did not of itself show that it was not reasonably necessary for the advancement of the claimant's case. No intentional delay or complication was submitted, and any delay or complication flowing from a fairly arguable leave application was not shown to be unnecessary. Accordingly no excluding order under s 198G was made. The opponent was entitled to costs of the claimant's summons for leave to appeal, while the cross-application retained a defensive character and each party should bear its or her own costs of it.

Jurisdiction
Australia
Judgment Date
05 June 2006
Procedural Posture
Costs Determination in Personal Injury Damages Proceedings Concerning an Application for an Excluding Order Under S 198 G of the Legal Profession Act 1987 / Court of Appeal Determination After Dismissal of Summonses for Leave to Appeal
Outcome
No excluding order was made under s 198G. The claimant was ordered to pay the opponent's costs of the claimant's summons for leave to appeal, and each party was ordered to pay its or her own costs of the opponent's summons for leave to appeal.
Legal Topics
['cap on Recoverable Costs' 'excluding Order Under Legal Profession Act 1987 S 198 G' 'appeal Costs' 'leave to Appeal' 'reasonably Necessary Advancement of Case']
['costs' 'legal Profession' 'personal Injury Damages'] ['cap on Recoverable Costs' 'excluding Order Under Legal Profession Act 1987 S 198 G' 'appeal Costs' 'leave to Appeal' 'reasonably Necessary Advancement of Case']

Case Brief

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Procedural Posture

Costs Determination in Personal Injury Damages Proceedings Concerning an Application for an Excluding Order Under S 198 G of the Legal Profession Act 1987 / Court of Appeal Determination After Dismissal of Summonses for Leave to Appeal

Legal Issues

  1. 1 ["Whether legal services provided to the opponent in response to the claimant's application for leave to appeal should be excluded from the operation of Pt 11 Div 5B of the Legal Profession Act 1987 under s 198G." "Whether the claimant's application for leave to appeal was not reasonably necessary for the advancement of the claimant's case." "Whether the claimant's application for leave to appeal was intended or reasonably likely to unnecessarily delay or complicate determination of the opponent's claim." "What costs order should be made on the opponent's summons for leave to cross-appeal."]

Ratio Decidendi

By majority, the claimant's application for leave to appeal was necessary if the claimant's case was to be advanced at all and was fairly arguable, although unsuccessful. Its failure did not of itself show that it was not reasonably necessary for the advancement of the claimant's case. No intentional delay or complication was submitted, and any delay or complication flowing from a fairly arguable leave application was not shown to be unnecessary. Accordingly no excluding order under s 198G was made. The opponent was entitled to costs of the claimant's summons for leave to appeal, while the cross-application retained a defensive character and each party should bear its or her own costs of it.

Court Disposition

No excluding order was made under s 198G. The claimant was ordered to pay the opponent's costs of the claimant's summons for leave to appeal, and each party was ordered to pay its or her own costs of the opponent's summons for leave to appeal.

Orders

  • ["Order that the claimant pay the opponent's costs of the claimant's Summons for leave to appeal." "Order that each party pay its or her own costs of the opponent's Summons for leave to appeal."]