Johnson v DOCS (No 2) [1999] NSWSC 1251

Johnson v DOCS (No 2) [1999] NSWSC 1251

The Court ordered that the appellant may have the costs of the application before Master Harrison and of the appeal assessed and/or taxed forthwith, and that the respondents pay those costs upon assessment or taxation subject to any leave application or appeal, because the interlocutory limitation relief was sufficiently distinct from the primary relief, the appellant would otherwise be unlikely to recover costs for several years, the issues raised were discrete for present purposes, and the appellant's weak financial position was a relevant though not determinative consideration.

Jurisdiction
Australia
Judgment Date
17 December 1999
Procedural Posture
Civil Appeal and Costs Application / Application Under Part 52 a Rule 9(1) for Costs to Be Assessed and Paid Before the Conclusion of the Proceedings After the Appellant's Appeal From Master Harrison Was Upheld
Outcome
Application granted with payment deferred if the respondents seek leave to appeal from the decision of 2 December 1999 until leave is refused, the appeal is dismissed, or there is no variation to the costs order.
Legal Topics
['costs Payable Before Conclusion of Proceedings' 'interlocutory Costs Orders' 'extension of Time Under the Limitation Act 1969' 'discretion Under Part 52 a Rule 9(1)']
['civil Procedure' 'costs' 'limitation of Actions'] ['costs Payable Before Conclusion of Proceedings' 'interlocutory Costs Orders' 'extension of Time Under the Limitation Act 1969' 'discretion Under Part 52 a Rule 9(1)']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Appeal and Costs Application / Application Under Part 52 a Rule 9(1) for Costs to Be Assessed and Paid Before the Conclusion of the Proceedings After the Appellant's Appeal From Master Harrison Was Upheld

Legal Issues

  1. 1 ['Whether the appellant should have leave under Part 52A rule 9(1) to have the costs of the application before Master Harrison and the appeal assessed and/or taxed forthwith.' 'Whether the respondents should be required to pay those costs before the conclusion of the substantive proceedings.' 'Whether the interlocutory limitation proceedings were sufficiently distinct from the primary relief and whether the appellant would otherwise wait a significant period to recover costs.']

Ratio Decidendi

The Court ordered that the appellant may have the costs of the application before Master Harrison and of the appeal assessed and/or taxed forthwith, and that the respondents pay those costs upon assessment or taxation subject to any leave application or appeal, because the interlocutory limitation relief was sufficiently distinct from the primary relief, the appellant would otherwise be unlikely to recover costs for several years, the issues raised were discrete for present purposes, and the appellant's weak financial position was a relevant though not determinative consideration.

Court Disposition

Application granted with payment deferred if the respondents seek leave to appeal from the decision of 2 December 1999 until leave is refused, the appeal is dismissed, or there is no variation to the costs order.

Orders

  • ['The appellant have leave to have the costs of the application before Master Harrison and of the appeal before Rolfe J assessed and/or taxed forthwith.' 'The respondents pay such costs forthwith upon such assessment or taxation, provided that should the respondents seek leave to appeal from the decision of 2...