Bourke Air Charter v Easton (No 2) [2003] NSWIRComm 209

Bourke Air Charter v Easton (No 2) [2003] NSWIRComm 209

The appellants' substantive arguments did not displace the earlier conclusion on first instance costs because the respondent had pleaded and pursued a claim for payment for additional hours worked, although Kavanagh J erred by applying an overtime rate. Neither party was recalcitrant in settlement attempts, and the figure adopted by Kavanagh J was open and accepted on appeal. However, because the first instance costs issue was finely balanced and a just outcome overall required adjustment, the appeal and cross-appeal costs order was amended so that the appellants pay 70 per cent rather than 80 per cent of the respondent's costs.

Jurisdiction
Australia
Judgment Date
27 June 2003
Procedural Posture
Application for Leave to Appeal and Appeal; Cross Appeal; Costs / Full Bench Judgment Re Costs After Substantive Appeal and Cross Appeal
Outcome
Costs order amended in part.
Legal Topics
['costs' 'appeal' 'unfair Contract' 'offers of Compromise' 'attempts at Settlement']
['industrial Relations' 'practice and Procedure'] ['costs' 'appeal' 'unfair Contract' 'offers of Compromise' 'attempts at Settlement']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Leave to Appeal and Appeal; Cross Appeal; Costs / Full Bench Judgment Re Costs After Substantive Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether circumstances existed to justify an exception to the prima facie rule that costs follow the event in relation to costs before Kavanagh J.' 'Whether offers of compromise and settlement attempts warranted altering the earlier costs orders.' 'Whether the costs order for the appeal and cross-appeal should be adjusted.']

Ratio Decidendi

The appellants' substantive arguments did not displace the earlier conclusion on first instance costs because the respondent had pleaded and pursued a claim for payment for additional hours worked, although Kavanagh J erred by applying an overtime rate. Neither party was recalcitrant in settlement attempts, and the figure adopted by Kavanagh J was open and accepted on appeal. However, because the first instance costs issue was finely balanced and a just outcome overall required adjustment, the appeal and cross-appeal costs order was amended so that the appellants pay 70 per cent rather than 80 per cent of the respondent's costs.

Court Disposition

Costs order amended in part.

Orders

  • ['Order 7 in the orders made by this Full Bench in these proceedings on 29 November 2001 is amended by deleting the numeral "80" and inserting in lieu thereof the numeral "70".']