Comcare v Broadhurst (No 2) [2011] FCAFC 60

Comcare v Broadhurst (No 2) [2011] FCAFC 60

Order 4 should be varied because Comcare had limited success in that the cross-appeal was dismissed, but the principal issues on the appeal occupied most of the hearing time and Comcare did not obtain the variation it sought to the primary judge's orders. That limited success was sufficiently recognised by making no order as to costs of the cross-appeal, while Comcare was awarded the costs of its Notice of Motion.

Jurisdiction
Australia
Judgment Date
06 May 2011
Procedural Posture
Notice of Motion in Appeal / Full Court Application to Vary Costs Order, Heard on the Papers
Outcome
Order 4 varied; Notice of Motion otherwise dismissed; cross-appellant ordered to pay the cross-respondent's costs of the Notice of Motion.
Legal Topics
['liberty to Apply' 'variation of Costs Order' 'cross Appeal Costs']
['costs' 'federal Court Procedure'] ['liberty to Apply' 'variation of Costs Order' 'cross Appeal Costs']

Case Brief

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Procedural Posture

Notice of Motion in Appeal / Full Court Application to Vary Costs Order, Heard on the Papers

Legal Issues

  1. 1 ['Whether Order 4 made on 18 March 2011 should be varied.' 'Whether the cross-appellant or cross-respondent should bear the costs of the cross-appeal.' 'Whether Comcare should have its costs of the Notice of Motion.']

Ratio Decidendi

Order 4 should be varied because Comcare had limited success in that the cross-appeal was dismissed, but the principal issues on the appeal occupied most of the hearing time and Comcare did not obtain the variation it sought to the primary judge's orders. That limited success was sufficiently recognised by making no order as to costs of the cross-appeal, while Comcare was awarded the costs of its Notice of Motion.

Court Disposition

Order 4 varied; Notice of Motion otherwise dismissed; cross-appellant ordered to pay the cross-respondent's costs of the Notice of Motion.

Orders

  • ['Order 4 as made on 18 March 2011 is vacated and in lieu thereof it is ordered that "4. There be no order as to costs in respect to the cross-appeal."' 'The Notice of Motion as filed on 24 March 2011 is otherwise dismissed.' 'The cross-appellant is to pay the costs of the cross-respondent in respect to the said...