Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2) [2013] NSWCA 39

Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) (No 2) [2013] NSWCA 39

The Court amended and varied its earlier costs orders because the State's active participation in the issue estoppel argument justified a partial costs order in favour of Ms Blackburn, the State's offer of compromise justified ordinary costs up to 28 July 2011 and indemnity costs thereafter against Mr Withyman, and the State's abandoned and misdirected application for leave to appeal justified an order that it pay Mr Withyman's costs of that application and motion.

Jurisdiction
Australia
Judgment Date
25 February 2013
Procedural Posture
Costs Motions in the Court of Appeal / Notices of Motion to Vary or Amend Costs Orders Made on 11 February 2013
Outcome
All three notices of motion were granted, and the costs orders made on 11 February 2013 were amended or varied accordingly.
Legal Topics
['costs of Appeal' 'offer of Compromise' 'issue Estoppel' 'variation of Orders' 'indemnity Costs' 'application for Leave to Appeal']
['civil Procedure' 'costs'] ['costs of Appeal' 'offer of Compromise' 'issue Estoppel' 'variation of Orders' 'indemnity Costs' 'application for Leave to Appeal']

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Procedural Posture

Costs Motions in the Court of Appeal / Notices of Motion to Vary or Amend Costs Orders Made on 11 February 2013

Legal Issues

  1. 1 ["Whether the State of New South Wales should pay part of Ms Blackburn's costs of the appeal because it argued the issue estoppel point on appeal." "Whether order B(4) should be varied to reflect an offer of compromise and require Mr Withyman to pay the State's costs on an ordinary basis to 28 July 2011 and on an indemnity basis thereafter." "Whether the State of New South Wales should pay Mr Withyman's costs of the State's abandoned application for leave to appeal."]

Ratio Decidendi

The Court amended and varied its earlier costs orders because the State's active participation in the issue estoppel argument justified a partial costs order in favour of Ms Blackburn, the State's offer of compromise justified ordinary costs up to 28 July 2011 and indemnity costs thereafter against Mr Withyman, and the State's abandoned and misdirected application for leave to appeal justified an order that it pay Mr Withyman's costs of that application and motion.

Court Disposition

All three notices of motion were granted, and the costs orders made on 11 February 2013 were amended or varied accordingly.

Orders

  • ['The orders of the Court of 11 February 2013 be amended to insert order 5A after order 5 in the following form: "The second respondent (State of New South Wales) pay one third of the appellant\'s (Ms Blackburn\'s) costs of the appeal."' "Order that the State of New South Wales pay Ms Blackburn's costs of the motion...